THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

GIFT  OF 

MRS.  BEATRICE  L.  SAWDAY 


A  TEEATISE 


ON  THE 


LAW  OF  REAL  PROPERTY 


BY 


JOHN  G.  HAWLEY 

>  u 

,AND 

MALCOLM  MCGREGOR, 

AUTHORS  OF  "HAWLEY  AND  MCGREGOR  ON  CRIMINAL  LAW. 


SECOND  EDITION. 


THE  SPRAGUE  PUBLISHING  CO., 

DETROIT,  MICH. 

1903. 


TO    THE 

HON.  CARL  E.  SCHMIDT, 

A  busy  business  man,  to  whom  no  field  of  knowledge  is  foreign, 
this  volume  is  dedicated. 


COPYRIGHT  1903. 
THK  8PKAGUE  PUBLISHING  COMPANY. 


1 


COPTKIQHT   1903. 
THE  SPRAGUE  PUBLISHING  COMPANY. 


AUTHORS'  PREFACE  TO  FIRST  EDITION. 


This  book  is  in  a  measure  an  innovation.  Existing  works 
on  the  law  of  real  property  have  given  more  space  to  law 
which  is  obsolete,  except  when  resurrected  for  the  purpose 
of  quizzing  a  student,  and  much  less  than  this  volume  to  those 
branches  of  the  law  of  real  property  which  are  important  in 
questions  which  are  constantly  coming  before  the  courts. 
We  have  tried  to  steer  our  bark  into  a  middle  course. 
Perhaps  we  may  share  the  fate  of  the  ancient  mariner  so 
graphically  described  by  the  Roman  poet,  "Qui  vult  vitare 
Scyllani  incidit  in  Oharibden,"  which  in  the  language  of  the 
present  day  might  be  taken  as  a  hint  not  to  get  too  far  in 
front  of  your  procession. 

But,  to  speak  seriously,  for  we  regard  our  preface  as  a 
little  confidence  between  ourselves  and  our  readers,  we  have 
tried  to  make  as  plain  as  we  could  those  problems  which  are 
likely  to  confront  the  practitioner  at  any  moment,  while,  at 
the  same  time,  endeavoring  to  sufficiently  explain  the  funda- 
mental  principles  of  real  property.  In  other  words,  our  aim 
has  been  to  furnish  that  knowledge  which  is  useful  rather 
than  that  which  is  ornamental.  If  we  may  be  permitted  to 
say  it,  this  book  is  intended  as  a  practical  book,  adapted  to 
the  needs  of  those  who  are  now,  or  shortly  expect  to  be. 
engaged  in  the  active  practice  of  law.  The  sections  devoted 
to  mortgages,  fixtures,  and  landlord  and  tenant  illustrate  our 
idea  in  this  regard. 

We  have  not  tried  to  make  our  book  a  sarcophagus.  We 
have  made  a  free  -use  of  cases  where  they  served  to  illustrate, 
or,  perhaps,  we  might  better  say  illuminate,  the  text,  but  we 
have  not  tried  to  make  a  large  table  of  cases. 

We  desire  to  acknowledge  our  indebtedness  to  Prof.  Jas- 
per C.  Gates,  of  the  Detroit  College  of  Law,  for  many  valu- 
able suggestions  we  have  received  from  him  during  the  prog- 
ress of  this  work. 

If  this  volume  shall  meet  with  as  much  favor  at  the  hands 
of  the  profession  as  our  book  on  Criminal  Law,  it  will 
be  sufficient  reward  for  three  toilsome  years. 

THE  AUTHORS. 


PUBLISHERS'  PREFACE  TO  FIRST  EDITION. 


It  is  a  little  more  than  three  years  ago  that,  thinking  that 
we  perceived  merit  in  the  work  of  the  authors  on  the  Criminal 
Law,  which  has  since  received  wide-spread  recognition,  we 
asked  them  to  prepare  a  strictly  up-to-date  work  on  real 
property,  and  it  was  a  hurry-up  order.  They  accepted  the 
proposal  to  prepare  the  book,  but  only  upon  the  condition  that, 
while  they  would  work  as  expeditiously  as  possible,  we  could 
not  have  their  MS.  until  they  themselves  were  satisfied  with  it. 
We  finally  concluded  that  good  work  was  worth  waiting  for. 
and  decided  to  let  them  have  their  own  way  as  to  time.  We 
suppose  that  we  are  not  the  only  publishers  who  have  had  to 
wait  a  long  time  for  a  book,  which  finally  satisfied  the  mind 
and  conscience  of  the  author.  We  hoped  to  have  had  this  book 
in  print  two  years  ago,  but  after  examining  it  we  are  satisfied 
that  it  is  better  to  wait  for  a  good  book  than  to  get  an 
undigested  book  in  a  hurry.  We  are  satisfied  with  the  result. 

Comparing  the  MS.  with  the  authors'  preface  we  think  it 
reasonably  answers  to  the  purposes  which  they  have  there 
outlined,  and  we  commit  it  to  the  judgment  of  the  profession, 
as  the  most  helpful  book  on  the  law  of  real  property  for  the 
student  and  general  practitioner  which  is  now  upon  the  market. 

THE  SPRAGUE  rrBLISHIXd  CO., 
Detroit,  1900. 


TABLE  OF  CONTENTS. 


PART  I. 

CHAPTER  I. 
NATURE   OF   REAL   PROPERTY. 

Definition  of  Property 1 

Classes  of  Property 2 

Essentials  of  Real  Property 4 

Land    6 

Space  7 

Minerals   8 

Water  10 

Accretions  12 

Ice  12 

Natural  growths  (fructus  naturales) 14 

Fructus  industriales    16 

Manure 22 

( 'hurch  pews  23 

Heirlooms  24 

Effect  of  severance  from  soil 24 

CHAPTER  II. 

FIXTURES. 

Definition  26 

Intent  determines  character  261 

Rule  when  land  and  chattel  are  owned  by  same  person.  28 
Rule  when  chattel  and  land  are  not  owned  by  same  per- 
son    29-32 

Character  of  annexation 32 

Fixture  adapted  to  a  building 33 

Application  of  rules   34-36 

Removal  of  fixtures 38 


TABLE  OF  CONTENTS.  Vll 


PART  II. 


CHAPTER  I. 
ESTIMATES. 

Introductory    40 

Definition  of  Estate 42 

Feudal  system    43-46 

CHAPTER  II. 
FREEHOLD    ESTATES   OF  INHERITANCE. 

Fee  Simple   47 

Incidents   48 

How  created  48 

Fee  conditional    52 

Fee  tail 53 

CHAPTER  III. 
FREEHOLD  ESTATES  NOT  OF  INHERITANCE. 

Life  Estates    55 

Conventional   Life   Estates 55 

Legal  Life  Estates 5$ 

CURTESY-  ,^: 

Estates  by  curtesy 60 

Essentials: 

1 .  A  valid  marriage 61 

2.  Seisin  61 

3.  Issue    63 

4.  Death  of  wife 65 

How   barred    65 

Statutes   65 

DOWER— 

Definition  68 

Requisites: 

1.  Marriage    , 68 

2.  Seisin  of  husband 68-76 


V1I1  TABLE  OF  CONTENTS, 

DOWER— Continued. 

In  what  property  and  estates 76-83 

Mortgaged  lands   77 

Partnership  lands    78 

Improved  property    : . .  79 

Mineral  lands  80 

Lands  sold  on  contract 80 

In  property  in  which  husband  has  a  deter- 

minable  estate   81 

In  money 83 

Wild   lands    83 

3.    Death  of  husband 83 

Inchoate  dower   83 

Consummate  dower 85 

Assigned  dower  86 

Assignment  of  dower 86 

How  barred  or  defeated 88 

1.  By  act  of  wife: 

(a)  Release  88 

(b)  Estoppel 91 

(c)  Abandonment  and  adultery ....  92 

2.  By  act  of  husband  93 

3.  By  act  of  legislature 94 

4.  By  divorce   94 

5.  By  eminent  domain   95 

6.  By  dedication 95 

7.  By  determination  of  husband's  estate  96 

8.  By  partition  sale 97 

9.  By  statute  of  limitation 97 

10.  By  election  97 

11.  By  non-residence  and  alienage 98 

12.  By  jointure  99 

13.  By  ante-nuptial  settlement   100 

14.  By  post  nuptial  settlement 101 


TABLE  OF  CONTENTS.  ix 

Homestead 102-125 

Origin  102 

Legislation 104 

Construction  of  statutes 105 

Nature  of  right 106 

Definition  107 

Who  may  claim ' . . .  107-111 

In  what  property  111-115 

Extent  of  homestead  115-117 

In  whtt  estates  118 

Against  what  debts  protected 119-121 

How  lost: 

1.     By  abandonment 123 

i'.     By  alienation  123,125 

CHAPTER  IV. 

RIGHTS    AND    LIABILITIES  OF  LIFE  TENANTS. 
Relation  of  life  tenant  to  remainderman  or  reversioner.  .      126 

Rights  of  life  tenant: 

As  to  rents  and  profits 127 

To  alien  estate ' 128 

As  to  estovers 128 

As  to  emblements  128 

Liability  of  life  tenant: 

To  pay  taxes 129 

To  pay  interest 130 

To  make  repairs  130 

For  waste    130-135 

CHAPTER  V. 

ESTATES  LESS  THAN  FREEHOLD. 

Chattels  real 136 

Estates  for  years  139 

Landlord  and  Tenant.  .  139 


X  TABLE  OF  CONTENTS. 

Landlord  and  Tenant — Continued. 

Relation  and  rights 139 

Liabilities  arising  thereunder 143-145 

Modern  tenancy '. 145-140 

Possession   141} 

Landlord's  license  to  enter  leased  premises 153 

Leases 155 

Leases  in  writing  under  seal 158 

When  seal  essential  160 

Written  leases  not  under  seal 164 

Signing  of  written  leases 167 

Recording  leases 170 

Verbal  leases   172 

Implied  leases    173 

Agreement  for  lease  177 

Sub-leases  or  under-leases 179 

What  covenants  run  with  the  land 184 

Parts  of  a  lease 186 

Date  of  lease  188 

Operative  words    190 

Description  of  premises  190 

Of  the  term 193 

Of  rent 194 

When  payable 196 

Where  payable  197 

To  whom  payable 198 

On  what  grounds  may  be  refused 202 

Avoidance  of  lease  for  fraud 204 

Abandonment  of  premises 209 

Refusal  to  pay  rent 210 

Destruction  of  leased  premises 211 

Set-off  and  recoupment   213 

Restrictions  on  use  of  premises 214 

Oovenant  for  quiet  enjoyment .  216 


TABLE  OP  CONTENTS.  Xt 

Leases — Continued. 

Re-entry  for  forfeiture 218 

Covenant  of  tenant  to  repair 220 

( 'ovenant  not  to  sub-let  or  assign 223 

Surrender  of  possession  by  tenant . 226 

Covenant  for 226 

TENANCIES  FOR  INDEFINITE  TERMS: 

Tenants  at  sufferance 228 

Tenants  at  will 230 

Characteristics    233 

Tenancies  from  year  to  year 236 

CHAPTER  VI. 

MANNER  OF  ENJOYMENT  OF  ESTATES. 

Absolute  Estates  238 

Estates  upon  condition 238 

Condition  precedent 239 

Condition  subsequent   239 

Performance  and  non-perf ormance 240 

Effect  of  illegality  of  conditions 240 

Validity  of  conditions 243 

Conditional  Limitations  247 

CHAPTER  VII. 
MORTGAGES. 

History  248 

Definition  and  nature  of 249 

Form  of   251 

Legal  252 

Equitable   252 

1.  An  absolute  deed  intended  as  a  security.  .  253 

2.  Deed  and  contract  for  reconveyance 255 

3.  Trust  deeds    256 

4.  Agreements  to  give  a  mortgage  and  mort- 

gages improperly  executed  257 


Xii  TABLE  OP  CONTENTS. 

History— Continued. 

5.  Other  agreements 258 

6.  Deposit  of  title  deeds 258 

7.  Vendor's  lien  258 

8.  Vendee's  lien  . 261 

Relation  of  mortgagor  and  mortgagee 261 

Mortgagee's  interest  at  common  law 261 

Mortgagor's  interest  at  common  law 261 

Modification  of  common  law 262 

Tenancy  between  mortgagor  and  mortgagee 264 

Rights  and  liabilites  of  mortgagor 266 

Rights  and  liabilities  of  mortgagee 268 

Consideration    270 

What  may  be  mortgaged 273 

Assignment- 
fa)     Transfer  of  mortgagor's  interest 273 

(b)     Assignment  of  mortgagee's  interest 276 

Rights   of   assignee 279 

Merger 280 

Subrogation   .  282 

Discharge  and  release 285 

Redemption 287 

Registration    289 

Foreclosure   293 

Marshalling  assets 300 

CHAPTER  VIII. 

TIME  OF  ENJOYMENT  OF  ESTATES. 

Estates  in  possession  302 

Estates  in  expectancy 302 

Reversions   303 

Definition  304 

Rights  of  reversioner 306 

Possibility  of  reverter  .  306 


TABLE  OF  CONTENTS.  xiii 

Estates  in  expectancy — Continued. 

Remainders   307 

Vested    311 

Contingent  319 

Alternate   326 

Rule  in  Shelley's  case 327 

Executory  interests , 331 

Springing  uses    332 

Shifting  uses 332 

Executory  devises 333 

Rule  as  to  perpetuities 336 

CHAPTER  IX. 

JOINT  ESTATES. 

Estates  in  severalty 338 

Joint  estates  338 

Joint  tenancy   339 

Tenancy  by  entireties 342 

Estates  in  coparcenary .  351 

Estates  in  partnership 352 

Tenants  in  common    354 

Incidents  of  joint  estates 355 

CHAPTER  X. 

USES,  TRUSTS  AND  POWERS. 

Uses  and  trusts 360 

Active  trusts 365 

Passive  trusts  365 

Express  trusts  366 

Implied  trusts 366 

Resulting  trusts  367 

Constructive  trusts  367 

Charitable  trusts  374 

Powers    .  375 


XIV  TABLE  OF  CONTENTS. 

PART  III. 

CHAPTER  I. 

TITLE  TO  REAL  PROPERTY. 

Title 422 

How  acquired  by  governments 433 

How  acquired  by  private  persons 425 

1.  Descent   426 

Principles  of    430 

Who  may  inherit 435 

Relations  of  half  blood 435 

Posthumous  children   435 

Adopted  children   437 

Aliens 438 

Murderers   438 

Advancements   440 

2.  Adverse  possession 441 

Possession  must  be  continuous 444 

Possession  must  be  actual 445 

Possession  must  be  hostile '. . . . .  449 

Possession  must  be  open,  visible  and  notorious. .  450 

Possession  must  be  exclusive 453 

Must  be  an  intent  to  assert  title 454 

Effect  of  adverse  possession 45(5 

3.     Estoppel — 

Definition '. 457 

By  record 457 

By  will   457 

By  deed 458 

Estoppel  in  pais  459 

By  silence 461 

Boundaries: 

Estoppel  to  deny  line  fixed 463 


TABLE  OF  CONTENTS.  XV 

4.    Accretions — 

Definition 464 

Alluvion   465 

CHAPTER  II. 
TITLE  BY  INVOLUNTARY  ALIENATION. 

Title  by  execution  468 

Title  by  eminent  domain 473 

Tax  titles  478 

Sales  by  administrators  and  guardians 479 

CHAPTER  HI. 
TITLE    BY    VOLUNTARY  ALIENATION. 

Title  by  deed 481 

Essentials: 

1.  Parties  capable  of  entering  into  a  valid  con- 

tract    481 

2.  An  interest  in  real  property  which  is  the  sub- 

ject of  the  contract 481 

3.  A  writing   481 

4.  Apt  words  of  conveyance 482 

5.  Delivery  of  writing 482 

6.  Registration   484 

Deeds : 

Definition  484 

Form  of   485 

Date  and  parties  489 

Consideration    490 

Words  of  limitation   491 

Description 492 

Habendum  clause    493 

Covenants  .  .  .  494-497 


Xiv  TABLE  OP  CONTENTS. 

PART  III. 

CHAPTER  I. 

TITLE  TO  REAL  PROPERTY. 

Title 422 

How  acquired  by  governments 433 

How  acquired  by  private  persons 425 

1.  Descent   426 

Principles  of    430 

.     Who  may  inherit 435 

Relations  of  half  blood 435 

Posthumous  children   435 

Adopted  children   437 

Aliens 438 

Murderers   438 

Advancements   440 

2.  Adverse  possession 441 

Possession  must  be  continuous 444 

Possession  must  be  actual 445 

Possession  must  be  hostile '. . . .  .  449 

Possession  must  be  open,  visible  and  notorious. .  450 

Possession  must  be  exclusive 453 

Must  be  an  intent  to  assert  title 454 

Effect  of  adverse  possession 456 

3.     Estoppel — 

Definition '. 457 

By  record 457 

By  will   457 

By  deed 458 

Estoppel  in  pais  459 

By  silence 461 

Boundaries: 

Estoppel  to  deny  line  fixed 463 


TABLE  OF  CONTENTS.  XV 

4.    Accretions — 

Definition 464 

Alluvion   465 

CHAPTER  H. 
TITLE  BY  INVOLUNTARY  ALIENATION. 

Title  by  execution  468 

Title  by  eminent  domain 473 

Tax  titles 478 

Sales  by  administrators  and  guardians 479 

CHAPTER  HI. 
TITLE    BY    VOLUNTARY  ALIENATION. 

Title  by  deed 481 

Essentials: 

1.  Parties  capable  of  entering  into  a  valid  con- 

tract    481 

2.  An  interest  in  real  property  which  is  the  sub- 

ject of  the  contract 481 

3.  A  writing   481 

4.  Apt  words  of  conveyance 482 

5.  Delivery  of  writing 482 

6.  Registration   484 

Deeds : 

Definition  484 

Form  of   485 

Date  and  parties  489 

Consideration    490 

Words  of  limitation   491 

Description 492 

Habendum  clause    493 

Covenants  .  .  .494-497 


XVI  TABLE  OF  CONTENTS. 

CHAPTER  IV. 

TITLE  BY  DEVISE. 

Definitions 498 

1.  Will  must  be  testator's  wish 500 

2.  Testator  must  be  competent 500 

3.  Will  must  be  in  writing 503 

Revocation 507 

Construction    508 

CHAPTER  V. 

Land  contracts  510-528 

CHAPTER  VI. 

CAPACITY  TO  HOLD  AND  CONVEY   TITLE    TO    REAL 
PROPERTY. 

Who  may  be  grantee? 529 

Corporations  529 

Aliens  530 

Who  may  convey 530 

Infants 531 

Married  women 533 

Persons  non  compos  mentis 534 

Aliens  535 

Corporations  535 


PART  I. 


CHAPTER  I. 
NATURE  OF  REAL  PROPERTY. 

THE  WORD  PROPERTY   EN    ITS    ORDINARY    USE    MEANS 
ANYTHING  WHICH  HAS  AN  OWNER. 

WHILE  THE  WORD  IS  OFTEN  USED  IN  THE  LAW  IN 
THIS  SENSE,  YET  IT  IS  FREQUENTLY  USED  TO  INDICATE 
THE  EXCLUSIVE  RIGHT  TO  THE  USE,  ENJOYMENT  AND 
DISPOSAL  OF  ANYTHING  OWNED. 

It  is  one  of  the  functions  of  the  State  to  protect  an  owner 
in  his  property  rights.  The  right  to  be  protected  in  property 
rights,  is  of  the  highest  character  and  is  classed  with  the  right 
to  be  protected  in  life  and  liberty.  The  United  States  and  the 
State  Constitutions  provide  that  "no  man  shall  be  deprived  of 
life,  liberty  or  property  without  due  process  of  law."  In  order 
to  fulfil  the  function  of  protecting  property  rights  satisfac- 
torily, it  is  necessary  that  the  State  should  prescribe  laws,  in 
accordance  with  which  they  may  be  protected  by  the  State.  In 
order  that  a  proper  and  sufficient  code  of  law  for  the  accom- 
plishment of  this  purpose  should  be  established,  it  is  necessary 
that  property  should  be  properly  classified;  because  laws  which 
are  needed  to  protect  one  kind  of  property,  would  be  either 
unnecessary,  or  inadequate,  to  protect  another  kind  of  prop- 
erty. For  instance,  the  law  of  larceny  protects  personal  prop- 
erty, but  is  entirely  unnecessary  to  thus  protect  real  property 
rights;  for,  as  Blackstone  humorously  remarks,  "no  man,  how- 
ever feloniously  disposed,  ever  stole  an  acre  of  land."  The  pith 
of  this  saying  is  found  in  this,  that  larceny,  or  in  familiar 


2  NATURE   OF   REAL   PROPERTY. 

language,  stealing,  can  only  be  predicated  of  that  which,  in 
the  language  of  indictments  for  larceny,  can  be  "stolen,  taken 
and  carried  away."  No  man  can  steal,  take  and  carry  away 
an  acre  of  land. 

The  laws  of  forgery  serve  only  the  purpose  of  protecting 
property  rights  which  are  evidenced  by  written  instruments. 
If  there  were  no  written  instruments  which  were  evidence  of 
rights  of  property,  there  would  be  no  laws  against  forgery. 
The  laws  against  counterfeiting  would  be  of  no  use  in  a  state  of 
society  where  money  was  not  issued,  and  its  value  stamped 
upon  it,  by  the  State.  It  is  unnecessary  to  pursue  the  thought 
further. 

THE  LAW  DIVIDES  PROPERTY  INTO  TWO  GREAT  CLASSES 
—REAL  PROPERTY  AND  PERSONAL  PROPERTY. 

Not  only  our  law,  but  every  code  of  law  which  prevails  in  a 
civilized  country,  distinguishes  between  real  property  and  per- 
sonal property.  In  the  civil  law,  the  prolific  mother  of  most 
of  the  codes  of  continental  Europe,  property  is  divided  between 
the  movable  and  the  immovable.  These  words  better  represent 
the  essential  difference  between  these  two  classes  of  property, 
than  our  words,  real  and  personal. 

It  may  not  unnaturally  be  asked  why  it  is  a  matter  of  im- 
portance to  distinguish  between  what  is  real  and  what  is 
personal  property.  It  might  occur  to  the  non-legal  mind  that 
as  long  as  property  is  property,  and  is  something  that  belongs 
to  one  whose  ownership  can  be  transferred  to  another,  it 
should  make  no  difference  whether  it  is  called  real  or  personal, 
or  whether  it  is  assigned  to  one  class  or  the  other.  The  answer 
to  this  inquiry  is  found  in  the  necessary  differences  in  the 
laws  by  which  the  two  different  classes  of  property  are  pro- 
tected, and  their  transfer,  and  contracts  with  regard  to  them 
are  regulated. 


NATURE   OF   REAL   PROPERTY.  3 

If  a  man  dies  intestate,  that  is,  without  having  made  a 
legal  will,  his  heirs  immediately  become  the  owners  of  the 
real  property  of  which  he  died  possessed.  His  heirs  are  those 
who  inherit  his  real  property,  the  most  common  case  being  his 
children.2  Immediately  on  his  death  the  children  succeed  to 
the  ownership  of  the  realty,  subject  only  to  the  widow's  right 
of  dower.  It  is  different  with  regard  to  personal  property. 
The  title  to  this  does  not  pass  by  operation  of  law  from  the 
deceased  to  his  heirs.  The  legal  ownership  remains  in  abey- 
ance until  an  executor  or  an  administrator  receives  letters  of 
administration  from  the  proper  legal  authority,  and  then  such 
executor  or  administrator  is  the  legal  owner  of  the  personal 
property,  and  he  holds  it  until  the  purposes  of  administration 
are  accomplished.  When  administration  is  completed,  that  is, 
when  the  expenses  of  administration,  debts,  and  in  case  there 
is  a  valid  will,  the  legacies  have  been  paid,  the  residue  of  the 
personalty  is  distributed  in  accordance  with  the  terms  of  the 
will,  or,  in  the  case  of  an  intestate  estate,  in  accordance  with 
the  provisions  of  the  "Statute  of  Distribution."  Executors  and 
administrators  are  called  "personal  representatives."  Again, 
the  title  to  real  property  cannot  be  transferred  with  the  same 
facility  and  simplicity  as  the  title  to  personal  property.  The 
law  requires  certain  formal  and  solemn  proceedings  in  trans- 
ferring the  title  to  real  property,  which  are  entirely  unneces- 
sary when  dealing  with  personal  property.3  Again,  if  a  man 
dies  intestate  possessed  of  both  real  and  personal  property,  his 
real  property  is  allotted  according  to  the  law  of  the  country 
in  which  the  real  property  is  situated,  while  his  personal 
property  is  distributed  according  to  the  law  of  the  place  where 

2    Overturf  vs.  Dungan,  29  Ohio  St.,  230. 
The  widow  is  not  classed  as  an  heir: 

Barnett  vs.  Powers,  40  Mich.,  379. 
'     Austin  vs.  Sawyer,  9  Cowen  (N.  Y.),  39. 
Hirth  vs.  Graham,  50  Ohio  St.,  57. 


4  NATURE    OF    REAL    PROPERTY. 

lie,  at  the  time  of  his  death,  had  his  domicile.4  Again,  con- 
tracts with  regard  to  real  property  are  governed  and  construed 
according  to  the  law  of  the  place  where  the  land  is  situated, 
while  contracts  as  to  personal  property  are  ordinarily  governed 
by  the  law  of  the  place  wrhere  the  contract  is  made.  Again, 
the  actions  for  redress  for  injuries  to  real  and  personal  prop- 
erty differ  in  form  and  in  some  instances  in  the  place  in  which 
they  may  be  brought.5 

,  It  is  unnecessary  at  this  time  tp  multiply  illustrations  of 
the  importance  of  accurately  distinguishing  between  what  is 
real  and  what  is  personal  property.  Enough  has  been  said 
to  illustrate  the  importance  of  the  distinction.  What  has  been 
adverted  to  will  require  more  extended  discussion  hereafter. 

THE  ESSENTIAL  QUALITIES  OF  REAL  PROPERTY  ARE 
THAT  IT  IS  IMMOVABLE  AND  IMPERISHABLE. 

Only  that  which  is  immovable  and  imperishable  can  be  as- 
sented, as  a  matter  of  law,  to  be  real  property.  To  determine 
the  character  of  anything  which  is  not  immovable  and  im- 
perishable, resort  must  be  had  to  extrinsic  evidence.  By  the 
terms  immovable  and  imperishable  is  not  meant  an  absolute 
immovability  or  imperishability,  but  the  immovability  and  im- 
perishability possessed  by  this  earth. 

THE  THING  WHICH  IS  THE  BASIS  OF  THE  LAW  OF  REAL 
PROPERTY  IS  LAND  IN  ITS  NATURAL  STATE. 

Land,  as  Blackstone  says,  is  a  word  of  the  widest  significa- 
tion, or  in  Latin  phrase  nomen  generalissinium.  That  is,  it 
includes  not  only  the  surface  of  the  earth,  but  also  everything 
growing  upon  it  without  cultivation,  and  the  water  which 
covers  parts  of  the  earth's  surface,  and  also  the  space  above 
the  surface  and  the  contents  of  the  earth  below  its  surface. 

1    White  vs.  Howard,  46  N.  Y.,  144. 
5     Rickett  vs.  Dowell,  55  Ind.,  470. 

'McGonigle  vs.  Atchison,  33  Kan.,  726. 


NATURE   OF    REAL   PROPERTY.  5 

Cujus  est  solum  ejus  est  usque  ad  coelurn,  (he  who  owns  the 
land,  owns  the  space  above  even  to  the  heavens)  is  a 
familiar  maxim  of  the  law.  Therefore  the  correct  legal  idea 
of  land,  or  of  real  property,  is  of  a  portion  of  the  earth  whose 
boundaries,  beginning  at  a  point  at  the  center  of  the  earth, 
extend  straight  upwards  to  the  earth's  surface,  and  indefinitely 
upward  beyond.  It  follows  from  this  that  land  may  be  divided 
horizontally  as  well  as  vertically,  and  the  owner  of  land  may 
divide  and  sell  the  space  above  the  surface,  and  the  earth  be- 
neath the  surface,  as  well  as  he  can  divide  the  surface  into 
city  lots.6  Properly  speaking,  therefore,  land  is  so 
much  space  and  the  natural  contents  of  the  space.  Of  the 
artificial  contents  of  the  space,  that  is,  those  brought 
there  by  the  labor  of  man,  such  as  planted  trees,  cultivated 
crops,  and  buildings,  some  belong  to  and  are  reckoned  as  a 
part  of  the  real  property,  and  some  are  reckoned  as  personal 
property.  These  things  must  be  explained  in  detail  hereafter. 

•  Lillibriilge    vs.    Lackawaiimi  Coal   Co.,   143  Pa.   St.,   293;  13   L.   R.  A.. 
627. 

Defendant  was  the  owner  in  fee  of  coal  underlying  plaintiff's  prop- 
ertjr.  The  deed  to  defendant  contained  the  following  clauses:  "To 
have  and  to  hold  the  coal  in  and  under  said  land  unto  said  party  of 
second  part,  its  successors  or  assigns,  until  exhaustion  thereof,"  and, 
"with  the  sole  and  exclusive  right  to  mine  and  remove  same." 

The  defendant  cut  a  tunnel  through  the  underlying  coal  into  an 
adjoining  piece  of  property  owned  by  it  and  was  carrying  coal  through 
the  tunnel  from  such  adjoining  property.  Complainant  filed  a  bill  in 
equity  to  restrain  the  defendant  from  removing  coal  from  adjoining 
property  through  the  tunnel  under  complainant's  laud. 

The  lower  court  refused  to  grant  the  injunction.  It  was  contended 
by  the  complainant  that  the  defendant's  right  to  mine  coal  on  his 
property  was  an  incorporeal  right  to  remove  coal,  and  that  once  the 
coal  was  removed,  the  defendant  had  no  further  right  in  the  property 
and  no  right  to  use  the  tunnel  formerly  occupied  by  coal.  The  court 
did  not  accept  this  contention  and  held  that  the  defendant  was  the 
absolute  owner  of  the  coal,  i.  e.,  of  a  corporeal  hereditament  with  all 
the  rights  and  incidents  peculiar  to  the  ownership  of  land;  that  the 
surface  may  be  held  in  fee  by  one  person  and  the  mineral  also  in  fee 
by  another  person. 

The  court  held  that  the  defendant  being  the  owner  of  an  estate 
in  fee  simple,  it  would  still  be  entitled  to  the  space  it  occupies  when 
coal  is  removed. 

The  decision  of  lower  court  was  affirmed. 


(5  NATURE   OF   REAL   PROPERTY. 

From  the  explanations  given,  it  will  appear  that  the  following 
is  a  correct  definition: 

LAND  IS  A  PORTION  OF  SPACE  OWNED  BY  SOMEBODY, 
AND  MEASURING  FROM  THE  CENTER  OF  THE  EARTH  UP- 
WARDS TO  THE  SKY,  AND  INCLUDES  THAT  PORTION  OF  THE 
SOLID  CONTENTS  OF  THIS  SPACE  WHICH  IS  BY  LAW  CON- 
SIDERED AN  INHERENT  PART  OF  IT. 

The  phrase,  "owned  by  somebody,"  includes  governments, 
public  and  private  corporations,  as  well  as  individuals.  In 
our  country  vast  tracts  of  land  are  still  owned  by  the  National 
Government;  other  lands  are  owned  by  the  State  governments. 
But  whatever  portion  of  the  earth's  surface  is  within  our 
national  boundaries  has  an  owner.  The  test  of  ownership,  so 
far  as  real  property  is  concerned,  is  the  right  of  user  and  ex- 
clusion.7 This  right  is  not  an  absolute  and  unlimited  right, 
but  a  limited  one,  but  it  is,  after  all,  of  the  very  essence  of 
ownership  of  real  property. 

No  person,  using  the  word  person  as  including  every  legal 
entity  which  is  recognized  by  the  law  as  having  a  right  to  own 
property,  can  be  said  to  own  real  property,  unless  there  is  a 
right  of  exclusion.  For  this  reason  the  high  seas,  the  great 
oceans,  are  not  real  property,  because  they  are  the  common 
heritage  and  property  of  mankind.  National  and  State  terri- 
torial jurisdiction,  a  term  which  involves  a  species  of  owner- 
ship, extends  into  the  high  seas  for  a  distance  of  one  marine 
league  from  low  water  mark.  Beyond  this  limit  the  high  seas 
are  the  common  heritage  of  mankind,  and  therefore,  being  free 
to  all  the  world,  there  is  no  right  of  exclusion,  and  conse- 
quently no  real  property  there.  Those  who  own  lands  on  the 
shore  of  the  ocean  own  simply  to  the  low  water  mark.  Be- 
tween this  and  the  marine  league  limit,  there  is  a  species  of 

7     Eaton  vs.  Boston,  Concord  &  Montreal  R.  R.,  51  N.  H.,  504. 


NATURE    OF    REAL    PROPEREY.  7 

governmental  ownership.  How  much  of  this  ownership  is 
National,  and  how  much  State,  the  courts  have  not  yet  been 
called  upon  to  determine.  It  is  sufficient  for  the  present  pur- 
pose to  say  that  within  the  territorial  limits  of  the  United 
States  every  cubic  foot  of  real  property  has  an  owner.  A  given 
portion  of  space  measuring  from  the  center  of  the  earth  is 
absolutely  immovable.  What  is  contained  within  that  space, 
whether  soil,  water,  mineral,  plant  life,  or  buildings,  may  be 
removed  and  carried  away,  but  the  space  remains.  It  is  im- 
movable, and  may  be  filled  with  other  substances,  or  made 
available  to  new  uses.  This  then,  is  the  essence  of  real,  or  as 
it  is  better  termed,  immovable  property. 

ONLY  SPACE  IS  ALWAYS  AND  UNDER  ALL  CIRCUM- 
STANCES REAL  PROPERTY,  FOR  IT  ALONE  IS  IMMOVABLE. 
WHETHER,  IN  ANY  GIVEN  CASE,  MATTER  IS  REAL  OR  PER- 
SONAL PROPERTY,  DEPENDS  ON  ITS  LEGAL  RELATION  TO 
THE  SPACE  WHICH  IT  OCCUPIES. 

Having  attained  a  clear  conception  of  this  idea,  it  becomes 
necessary  to  inquire  what  things  contained  within  a  defined 
portion  of  space  are  considered  by  law  as  inherent  parts  of 
it,  and  are  therefore  governed  by  the  laws  affecting  real  prop- 
erty, and  not  by  laws  affecting  personal  property. 

We  have  already  seen  that  land  (using  the  term  in  its 
broadest  sense)  is  real  property.  It  only  remains  to  consider 
what  constitutes  land. 

THE  SOLID  MATERIAL  OF  THE  EARTH  IN  ITS  NATURAL 
STATE  IS  LAND  PROPERTY. 

This  proposition  requires  no  explanation.  The  solid  ma- 
terials of  the  earth,  including  the  soil,  rocks,  etc.,  until  severed, 
have  all  the  essentials  of  real  property,  as  explained.  In  its 
common  and  restricted  use,  the  word  "land"  includes  only  this 


8  NATURE   OF    REAL    PROPERTY. 

solid  material    of    the  earth,   and  the  student  will  sometimes 
find  this  restricted  use  of  the  word  in  statutes. 

WHATEVER  IS  IMBEDDED  IN  THE  SOLID  MATERIAL  OF 
THE  EARTH,  IN  ITS  NATURAL  STATE,  IS  A  PART  OF 
THE  LAND,  AND  IS  REAL  PROPERTY. 

This  proposition  needs  no  elaboration  and  no  qualification. 
It  will  be  made  sufficiently  clear  by  a  consideration  of  the  fol- 
lowing particulars: 

MINERALS. 

THE  OWNER  OF  THE  SURFACE,  IN  THE  ABSENCE  OF  AN 
EXPRESS  RESERVATION  IN  HIS  GRANT,  IS  THE  ABSOLUTE 
PROPRIETOR  OF  ALL  MINERALS  BENEATH  IT  IN  A  DIRECT 
LINE  TO  THE  CENTER  OF  THE  EARTH. 

Minerals  are  not  merely  incidents  to  the  ownership  of  the 
land  in  which  they  are  imbedded,  but  are  part  and  parcel 
thereof.  They  are  land.  As  such  they  pass  on  a  conveyance 
of  the  land  without  any  special  designation,  and  a  grantor 
desiring  to  retain  the  title  to  the  minerals  in  the  land  conveyed, 
must  expressly  reserve  the  same. 

The  owner  of  the  land  has  a  right  to  subdivide  his  property 
in  any  direction,  and  he  has  the  right  to  convey  special  in- 
terests in  the  subdivided  portions. 

He  may,  for  instance,  convey  the  surface  and  retain  the 
underlying  strata,  or  he  may  sell  the  underlying  strata  and 
retain  the  surface,  or  he  can  sell  one  or  more  of  the  minerals 
beneath  the  surface. 

It  frequently  happens  in  mining  districts,  that  the  surface 
is  owned  by  one  man,  the  coal  beneath  the  surface  by  another, 
the  petroleum  and  other  minerals  by  other  persons.  The  rights 
of  the  respective  parties  under  such  circumstances  to  their 
respective  portions,  are  considered  by  the  law  to  be  interests 


NATURE   OF    REAL    PROPERTY.  9 

or  estates  in  real  property.8  They  are  conveyed,  inherited,  and 
are  subject  to  dower  and  other  laws  relating  to  real  property.9 
Where  a  special  interest  is  conveyed  in  a  particular  mineral, 
the  general  owner  retains  all  the  rest,  subject  only  to  the 
rights  incidental  to  such  grant.  Thus  Avhere  a  grantor  con- 
veyed the  salt  in  certain  lands,  it  was  held  that  his  grantee 
must  account  to  him  for  the  petroleum  raised  with  the  salt 
and  disposed  of  by  the  grantee.10 

At  the  common  law,  there  was  one  exception  to  this  rule 
as  to  the  ownership  of  minerals.  It  was  one  of  the  functions 
of  the  English  sovereigns  to  furnish  coins  to  carry  on 
the  commerce  of  their  subjects.  Gold  and  silver  were  re- 
quired by  the  sovereign  for  this  purpose,  and  it  was  a  prin- 
ciple of  the  common  law  that  all  the  gold  and  silver  in  the 
realm  belonged  to  the  sovereign. 

»  Plummer  vs.  Hillside  Iron  Co.,   1OO  Pa.   St..  4S3. 

This  was  an  action  of  trespass.  Defendant  claimed  the  right  to 
enter  plaintiff's  land  under  an  instrument  made  by  one  Calendar 
through  whom  plaintiff  claimed  title. 

The  instrument  recited  that  "possession  of  the  leased  premises 
shall  extend  only  to  their  use  as  a  coal  field."  The  purchase  price  of 
the  coal  was  fixed  at  $200.00,  and  if  the  coal  proved  abundant  another 
$100.00  was  to  be  added. 

The  plaintiff  contended  that  this  writing  granted  only  an  incor- 
poreal right  of  user  to  the  lessee,  and  that  this  right  had  been  lost  by 
adverse  possession  on  part  of  plaintiff.  The  defendant  contended  that 
it  was  the  owner,  not  of  a  mere  right  of  user,  but  of  an  absolute 
estate  in  the  coal,  and  that  an  adverse  possession  of  the  surface  was 
not  adverse  to  the  rights  of  the  owner  of  an  estate  in  the  underlying 
strata. 

The  court  held  that  the  instrument  was  intended  as  a  sale  of  the 
underlying  coal.  "Such  a  conveyance  operates  to  sever  the  surface 
from  the  underlying  stratum  of  coal;  and  after  such  severance  the 
continual  occupancy  of  the  surface  by  the  vendor  is  not  hostile  to  the 
title  of  the  owner  of  the  underlying  estate  and  will  not  give  title  under 
the  statute  of  limitations.  *  *  *  The  owner  of  the  surface  can  be 
affected  only  by  the  invasion  of  the  surface.  The  owner  of  the  under- 
lying stratum  is  not  bound  to  take  notice  of  the  invasion  of  the  estates 
that  do  not  belong  to  him,  but  when  his  own  estate  is  invaded  he  is 
bound  to  take  notice.  The  conclusion  thus  reached  disposes  of  the 
title  by  possession  set  up  by  plaintiff  and  her  right  to  recover  in  this 
case." 

•     Adams  vs.  Briggs  Iron  Co.,  61  Mass.,  361. 

10    Kier  vs.  Peterson,  41  Pa.  St.,  357. 


10  NATURE   OF    REAL   PROPERTY. 

This  doctrine,  as  a  general  rule,  does  not  obtain  in  this 
country.  In  New  York  it  has  been  followed  to  this  extent,  the 
State  in  its  grants  has  reserved  the  right  to  all  gold  and  silver 
in  the  land  granted,  but,  by  statute,  owners  are  entitled  to 
the  gold  and  silver  discovered  on  their  lands  for  a  limited 
period. 

The  word  "mineral,"  as  used  in  connection  with  this  dis- 
cussion, includes  not  only  substances  of  which  metal  is  an 
ingredient,  but  also  other  substances  which  are  mined. 

Thus  oil  and  gases  have  been  classed  as  minerals,  and  while 
in  the  earth  in  their  natural  state,  are  subject  to  the  general 
rules  of  real  property  applicable  to  their  condition.11 

WATER. 

Water,  not   in  a   well-defined  surface  channel,   but   which 
percolates  through  the  earth,  is  regarded  as  part  of  the  land.12 

It  belongs  to  the  owner  of  the  surface,  and  may  be  the 
subject  of  sale,  the  same  as  minerals.13 

Surface  water  being  "water  which  is  merely  spread  over 
the  surface  and  flows  without  any  regular  course  or  channel, 
or  circulates  under  the  surface  through  the  pores  of  the 
earth"14  is  a  part  of  the  realty  and  belongs  to  the  owner  of  the 
land  on  which  it  is,  as  long  as  it  remains  on  his  land,  and  no 
longer. 

11    Westmorland  &  Cambria  Natural  Gas  Co.  vs.  De  Witt,  130  Pa. 

St.,  235. 

Wilson  vs.  Hughes  (W.  Va.),  39  L.  R.  A.,  292. 
Kelley  vs.  Ohio  Oil  Co.,  57  Ohio  St.,  317;  39  L.  R.  A.,  765. 
"    For  a  fuller  discussion  as  to  property  rights  in  water,  see 
Easements,  post  page  406. 
Slocum  vs.  Seymour,  36  N.  J.  L.,  139. 
Miller  vs.  Zufall,  113  Pa.  St.,  365. 
McClintock's  Appeal,  71  Pa.  St.,  365. 
13     Ocean  Grove  Camp  Meeting  Assn.,  Asbury  Park,  40  N.  J.  Eq.. 

447. 
"    Sweet  vs.  Cutts,  50  N.  H.,  446. 


NATURE   OF   REAL   PROPERTY.  11 

It  may  be  used  by  him,  free  from  any  usufructuary  claim 
by  others.15 

Water  flowing  in  a  definite  channel  and  having  a  definite 
bed  and  banks,  is  not  a  part  of  the  realty  and  is  not  the  subject 
of  absolute  ownership.  While  the  owner  of  the  land  through 
which  it  flows  may  use  it,  yet  his  right  to  do  so  is  qualified  and 
limited  by  the  rights  of  others  in  the  stream.16 

The  statement  as  to  surface  waters  ought  to  be  limited  to 
this  extent,  that  if  they  become  a  permanent  body  of  water, 
without  outlet,  and  are  situated  on  the  land  of  two  or  more 
persons,  the  different  owners  have  only  the  same  rights  therein 
as  in  flowing  streams.17 

It  is  more  difficult  to  determine  the  character  of  things  grow- 
ing on  or  attached  to  the  surface  of  the  land.  Many  of  the 
things  attached  to  the  surface  of  the  earth  are  the  result  of 
natural  forces  or  are  natural  growths;  others  are  the  result  of 
natural  forces  set  in  motion  and  guided  by  the  labor  of  man, 
and  others  are  the  result  solely  of  the  industry  and  labor  of 
man. 

In  reference  to  these  attachments,  we  state  the  following 
propositions : 

WHATEVER  IS  ATTACHED  TO  THE  SURFACE  OF  THE 
EARTH  BY  NATURAL  FORCES  IS  A  PART  OF  THE  SOIL  AND 
IS  REAL  PROPERTY. 

This  proposition  requires  no  explanation.  A  reading  of  the 
illustrative  case  and  the  discussion  of  the  law  relating  to  accre- 


Wilson  vs.  New  Bedford,  108  Mass..  261. 

Merrifield  vs.  City  of  Worcester,  110  Mass.,  216.         See  Post 

Easements. 
Schaefer  vs.  iMarthaler,  34  Minn..  487. 


1.2  NATURE   OF    REAL   PROPERTY. 

tioiis  and  ice  will  indicate  the  force  and  application  of  the 
principle.18 

Accretions  which  have  been  denned  as  ''the  increase  of 
real  estate  by  the  addition  of  portions  of  the  soil  by  gradual 
deposition  through  the  operation  of  natural  causes,"  comes 
within  this  principle  and  will  be  discussed  hereafter.19 

ICE. 

Ice  is  generally  regarded  as  part  of  the  soil  over  which  it 
forms  and  to  which  it  is  attached. 

The  reasoning  of  the  cases  holding  this  view  is,  that  water 
being  congealed  and  attached  to  the  soil,  is  like  any  other 
natural  accession  to  realty  and  must  be  considered  a  part 
thereof,  and  that,  since  the  owner  of  the  soil  can  entirely  ap- 
propriate it  without  detriment  to  the  public  and  the  usufruc- 


is  Goodard  vs.  Wtneliell,  SO  Iowa,  71. 

The  plaintiff  was  the  owner  of  a  half  section  of  land  in  Iowa.  On 
this  land  there  "fell  from  the  heavens  a  66-pound  aerolite  which  was 
found  by  one  Hogland,  imbedded  three  feet  in  the  earth.  Hogland 
dug  it  up  and  removed  it  to  his  own  property;  subsequently  he  sold 
it  to  the  defendant  for  $100.00.  Plaintiff  then  replevied  the  aerolite 
from  the  defendant,  claiming  title  under  the  rule  'that  whatever  is 
affixed  to  the  soil  belongs  to  the  soil.'  Defendant  contended  that  his 
grantor  obtained  title  by  occupancy  of  a  thing  which  belonged  to  no  one, 
and  as  finder  of  abandoned  or  lost  property."  The  court  in  part 
said:  "It  (that  is  aerolite)  came  to  its  position  in  the  earth  through 
natural  causes.  It  was  one  of  nature's  deposits,  with  nothing  in  its 
material  composition  to  make  it  foreign  or  unnatural  to  the  soil.  It 
was  not  a  movable  thing  'on  the.  earth.'  It  was  ki  the  soil  and  in  a 
very  significant  sense  immovable;  that  is,  it  was  only  movable  as 
parts  of  the  earth  are  made  movable  by  the  hands  of  man.  It  was  in 
substance  a  stone  and  was  not  of  a  character  to  be  thought  of  'as 
unclaimed'  by  the  owner,  and  because  unclaimed  supposed  to  be  aban- 
doned by  the  last  proprietor,  as  should  be  the  case  under  the  rule 
invoked  by  the  defendant." 

The  court  held  that  the  aerolite,  under  the  doctrine  of  accretion, 
became  the  property  of  the  owner  of  the  soil,  and  that  the  rule  as  to 
lost  .property  was  not  applicable,  as  the  property  was  not  lost  or  aban- 
doned. The  judgment  of  the  lower  court  in  favor  of  the  plaintiff  was 
affirmed. 

19     See  post  Title,  page  422. 


NATURE  OF  REAL  PROPERTY.  13 

tuary  rights  of  others,  no  reason  exists  why  he  should  not  en- 
tirely appropriate  it.20 

In  some  States,  the  soil  under  navigable  rivers  is  owned  by 
the  State,  and  in  that  case  the  riparian  owner  is  not  the  owner 
of  the  ice,  but  it  belongs  to  the  general  public.21 

Where  this  doctrine  prevails,  the  person  who  first  definitely 
appropriates  it  becomes  its  owner.22 

20    Washington  Ice  Co.  vs.  Shortall.  101  111.,  46. 

Brookville  &  M.  Hydraulic  Co.  vs.  Butler,  91  Ind.,  134. 

Lorman  vs.  Benson,  8  Mich.,  18. 

People's  Ice  Co.  vs.  Excelsior,  44  Mich.,  229. 

Shortall    vs.    Washington    Ice    Co,,    1O1  111.,   46 

This  was  an  action  of  trespass  quarc  clausuni  f re-git  by  plaintift 
against  the  Ice  Company,  for  cutting,  removing  and  appropriating  ice 
which  formed  over  the  bed  of  the  Calumet  river  within  limits  of  plain- 
tiff's land. 

The  court  held  that  under  the  rule  adopted  in  Illinois,  the  plaintiff 
was  the  owner  of  the  land  to  the  center  of  the  stream,  subject  to  the 
easement  of  navigation.  It  was  contended  by  defendant  that  the 
plaintiff  had  a  mere  usufructuary  use  of  the  stream,  and  that  therefore 
had  no  title  to  the  ice,  since  it  was  only  congealed  water.  In  answer 
to  this  contention  the  court  says:  "When  water  has  congealed  and 
become  attached  to  the  soil,  why  should  it  not,  like  any  other  accession, 
be  considered  part  of  the  realty?  Wherein  in  this  regard  should  the 
addition  of  ice  formed  over  the  bed  of  a  stream  be  viewed  differently 
from  alluvion  which  is  the  addition  made  to  land  by  the  washing  of 
the  sea  or  rivers?" 

The  court  held  that  the  owner  of  the  river  bed  was  the  owner  of 
the  ice  forming  over  it,  and  affirmed  the  judgment  in  favor  of  plaintiff 
by  lower  court. 

»  AY ood    vs.    Fowler,   26    Kan.,  6S2.  " 

This  was  a  petition  for  an  injunction  to  restrain  defendants  from 
removing  ice  which  was  alleged  to  belong  to  petitioner. 

Petitioner  claimed  ownership  as  lessee  of  one  'Splittlog,  the 
riparian  owner.  The  defendant  claimed  that  the  title  of  Splittlog 
extended  only  to  the  bank  of  the  river;  that  the  title  to  the  bed  of  the 
river  was  in  the  state  and  that  he  was  entitled  to  remove  the  ice,  being 
the  first  occupant  of  same. 

The  court  found  that  the  river  on  which  the  ice  formed  was  navi- 
gable, and  held  that  under  the  laws  of  Kansas,  Splittlog's  title  did  not 
extend  to  the  center  of  the  stream  but  to  the  bank,  and  that  therefore 
plaintiff's  lessor  had  no  title  to  ice  found  over  public  or  state  property; 
and  that  the  ice  belonged  to  the  one  who  first  appropriated  and  secured 
it,  on  the  same  principle  that  he  who  catches  a  fish  in  a  public  stream 
owns  it. 

See  also  Hettinger  vs.  Ames,  121  Mass.,  539. 

K    Woodman  vs.  Pitman,  79  Me.,  456. 


14  NATURE   OF   REAL   PROPERTY. 

Ice  formed  on  private  ponds  is  owned  by  the  owner  of  the 
land  on  which  it  forms,  and  ice  formed  on  public  ponds  is 
owned  by  the  public.23 

THE  NATURAL  GBOWTHS  FROM  THE  SOIL  WHICH  DO 
NOT  REQUIRE  A  PERIODICAL  PLANTING  OR  LABOR  ARE, 
WHILE  TTNSEVERED,  A  PART  OF  THE  SOIL  TO  WHICH  THEY 
ARE  ATTACHED  AND  ARE  REAL  PROPERTY. 

Such  growths  are  known  as  fructus  naturales.  Thus  trees, 
grasses,  herbs  and  perennial  roots  are  a  part  of  realty  and 
pass  with  it  on  conveyance  without  any  special  designation. 
So,  in  an  interesting  case,  the  court  held  that  blackberries 
growing  on  the  bushes  were  a  part  of  the  realty  and  not  sub- 
ject to  a  levy  on  execution  in  the  same  manner  as  personal 
property.24 

The  principle  stated  finds  the  most  frequent  application  in 
the  case  of  trees. 

TREES. 

Standing  trees  are  a  part  of  the  realty.  There  is  an  ap- 
parent exception  to  this  statement.  Trees  planted  or  raised 
in  a  nursery  for  the  purpose  of  transplanting,  while  a  part  of 
the  realty  so  that  they  would  pass  as  a  part  of  the  freehold  on 
a  sale  or  mortgage  by  the  owner  of  the  freehold,  he  being  also 
the  owner  of  the  nursery  trees,  are  yet  regarded,  as  between  a 
landlord  and  tenant,  and  for  the  purpose  of  sale,  as  personal 
property.25 

It  was  formerly  contended  that  trees  standing  so  near  the 
boundary  line  as  to  draw  nourishment  from  adjoining  property, 
belonged  partly  to  the  adjoining  owner.  It  is  now  settled  that 
the  owner  of  the  property  on  which  the  trunk  of  the  tree  is, 

"    Eowell  vs.  Doyle,  131  Mass.,  474. 
"    Sparrow  vs.  Pond,  49  Minn.,  412. 


NATURE   OF   REAL   PROPERTY.  15 

is  the  owner  of  the  tree;  and  this  is  true,  even  though  the 
branches  extend  over  the  adjoining  property.  But,  while  the 
tree,  and  the  whole  of  it,  belongs  to  the  owner  of  the  soil  on 
which  it  is,  when  any  part  of  it  is  found  across  the  boundary, 
the  adjoining  owner  may  demand  its  removal,  or,  remove  it 
himself.26 

This  doctrine  is  entirely  in  accord  with  the  principle  that 
the  owner  of  the  soil  owns  all  above  and  below  it,  and  that 
the  right  of  exclusion  is  the  very  essence  of  the  ownership  of 
land.27 

The  right  to  cut  the  branches  must  not  be  confused  with 
the  right  to  the  tree;  for  the  overhanging  branches  and  the 
fruit  thereon,  even  when  cut,  belong  to  the  owner  of  the  tree.28 

*  Smith   vs.  Price,  39   Illinois,  28. 

The  defendant  sold  land  to  plaintiff  and  the  writing  contained  no 
reservation.  After  plaintiff  went  into  possession  defendant  attempted 
to  remove  certain  fruit  trees  and  ornamental  shrubbery  growing  on 
the  land  and  cultivated  for  nursery  purposes.  Plaintiff  filed  a  bill  of 
complaint  praying  for  an  injunction  to  restrain  defendant  from  remov- 
ing the  trees  and  shrubbery. 

The  court  held  that  an  injunction  should  issue  as  prayed;  that 
while  the  trees  and  shrubberies  were  for  nursery  purposes  only,  yet 
they  were  a  part  of  the  freehold,  and  as  between  a  vendor  and  a 
vendee,  would  pass  with  the  land;  and  that  parol  evidence  is  inadmis- 
sible to  show  a  reservation.  The  court  intimated  that  as  between  a 
landlord  and  a  tenant  it  would  hold  the  trees  to  be  personal  property. 

28    Hickey  vs.  M.  C.  R.  R.,  96  Mich.,  498;  21  L.  R.  A.,  729. 

27    Robinson  vs.  Clapp,  65  Conn.,  365. 

See  Hickey  vs.  M.  C.  R.  R..  96  Mich.,  498. 
Hoffman  vs.  Armstrong,  48  N.  Y.,  201. 

»  Skinner   vs.   Wilder,   38   Vt..  115. 

Plaintiff  and  defendant  were  adjoining  owners.  Plaintiff  planted 
some  apple  trees  six  feet  from  boundary  line  and  the  trees  grew  until 
the  roots  extended  into  and  some  of  the  branches  overhung  defendant's 
land.  Defendant  packed  and  carried  away  the  apples  on  the  branches 
overhanging  his  property  and  plaintiff  then  brought  this  action  of 
trespass  and  of  trover  for  the  conversion  of  the  apples. 

The  defendant  contended  that  he  was  the  owner  of  everything 
above  his  land,  and  that  since  the  roots  of  the  tree  drew  nourishment 
from  his  land  he  was  a  part  owner  and  tenant  in  common  of  the  tree 
and  its  product. 

The  court  held  that  while  the  owner  of  the  land  was  the  owner 
of  the  space  above  it  and  might  remove  or  lop  off  the  branches,  yet  it 
did  not  follow  that  he  was  the  owner  of  all  material  substances  which 


16  NATURE  OF  KEAL  PROPERTY. 

If  the  body  of  the  tree  is  on  the  dividing  line,  it  is  the  com- 
mon property  of  the  adjoining  owners;29  and  each  must  so  use 
his  portion  as  not  to  destroy  or  impair  the  rights  of  his  neigh- 
bor in  the  other  portion.30 

We  come  now  to  the  consideration  of  the  nature  of  those 
growths  which  are  the  result  of  the  forces  of  nature  set  in  mo- 
tion by  the  labor  of  man,  and  which  require  periodical  planting 
and  care.  Such  growths  are  known  as  fructus  industriales  or 


came  into  that  space;  for  instance,  the  court  pointed  out  that  personal 
property  wrongfully  placed  on  owner's  land  does  not  belong  to  him. 
The  court  held  that  the  apples  belonged  to  the  owner  of  the  tree.  The 
contention  of  defendant  that  he  was  a  joint  owner  by  reason  of  the 
extension  of  the  roots  of  the  tree  into  his  property  was  also  overruled; 
since  it  would  be  impossible  to  tell  to  what  extent  the  tree  drew  nour- 
ishment from  adjoining  property,  and  the  rights  of  the  parties  would 
be  constantly  changing  by  the  growth  and  extension  of  roots  across  the 
boundary  line.  The  court  therefore  held  that  the  tree  and  its  product 
belonged  to  him  on  whose  land  it  was  situated. 

See  also  Griffin  vs.  Bixley,  12  N.  H.,  454. 

"    Musch  vs.  Burkhart,  83  Iowa,  301;  12  L.  R.  A.,  484. 
30  Robinson  vs.  Clapp,  65  Conn.,    365. 

Suit  by  plaintiff  to  restrain  defendant  from  injuring  a  tree,  partly 
on  plaintiff's  and  partly  on  defendant's  land. 

The  boundary  line  between  plaintiff's  and  defendant's  property  ran 
through  the  middle  of  the  tree  over  which  the  controversy  arose.  The 
tree  was  valuable  to  plaintiff  as  a  shade  tree  and  ornament.  The 
defendant  was  about  to  build  on  his  own  property,  and  threatened  to 
remove  that  portion  of  the  tree  which  was  on  his  own  property.  The 
removal  of  the  portion  of  the  tree  on  defendant's  property  would  de- 
stroy the  life  of  the  entire  tree. 

The  lower  court  rendered  a  judgment  for  plaintiff  restraining  the 
defendant  "from  such  interference  with  the  tree  as  will  destroy  or 
injure  same."  The  court  modified  the  injunction  of  the  lower  court. 
It  held  that  each  of  the  land  owners  had  an  interest  in  the  tree  equal 
to  or  incidental  with  the  part  which  was  upon  his  land,  and  that  each 
owner  had  a  right  to  demand  that  the  owner  of  the  other  portion 
should  so  use  his  part  as  not  to  unreasonably  injure  or  destroy  the 
whole.  "But  we  think  the  law  is  well  settled,  that  where  the  branches 
of  a  tree  extend  over  on  adjacent  owner's  land,  he  may  lop  them  off 
up  to  the  line,  even  though  that  were  practically  to  the  trunk  of  the 
tree.  *  *  *  That  the  defendant  should  have  less  right  to  lop  these 
branches  because  he  owns  a  portion  of  the  tree  than  if  he  owned  none 
of  it,  seems  to  us  to  be  unreasonable.  The  injunction  should  not  extend 
further  than  to  restrain  defendant  from  cutting  any  portion  of  the 
trunk." 

To  the  same  effect  see  Musch  vs.  Burkhart,  83  Iowa,  301. 


NATURE  OF  REAL  PROPERTY.  17 

emblements,  and  include  all  kinds  of  crops,  vegetables  and 
other  products  resulting  from  an  annual  planting  and  culti- 
vation. 

In  reference  to  these,  it  may  be  said  as  follows : 

AS  BETWEEN  A  GRANTOR  AND  GRANTEE  FRUCTUS  IN- 
DUSTRIALES  ARE  REGARDED  AS  A  PART  OF  THE  SOIL,  AND, 
IF  ATTACHED  TO  IT  AT  TIME  OF  A  TRANSFER,  WILL  PASS 
AS  A  PART  OF  REALTY,  WITHOUT  SPECIAL  DESIGNATION.51 

Fructus  industrials  will  also  pass  by  will  to  the  devisee  as 
part  of  the  realty.32  The  same  principle  applies  as  between 
a  mortgagor  and  a  mortgagee.33 

In  some  States  a  distinction  has  been  made  between  ma- 
ture and  immature  crops.  It  has  been  held  that  ripened  crops, 
since  they  have  ceased  to  draw  any  nourishment  from  the  soil, 
are  not  a  part  of  it,  and  do  not  pass  with  a  conveyance  of  the 
land,  although  unsevered  at  the  time  of  the  sale.34 

The  rule  stated  in  the  text  is  supported  by  the  weight  of 
authority,  and  is  the  better  rule,  since  it  is  only  natural  that 
unsevered  crops,  whether  ripe  or  not,  entered  into  the  view 
of  the  purchaser  or  mortgagee  and  were  a  factor  in  determin- 
ing the  value  of  the  property. 

For  other  purposes,  and  for  the  purpose  of  sale  and  contract, 
a  contrary  rule  prevails. 

FOR  THE  PURPOSES  OF  SALE  AND  CONTRACT,  AND  AS 
ALES  ARE  REGARDED  SOLELY  AS  THE  PRODUCT  OF  LABOR 
BETWEEN  DEBTOR  AND  CREDITOR,  FRUCTUS  INDUSTRI- 
AND  ARE  PERSONAL  PROPERTY.35 

Thus,  they  are  subject  to  levy  and  sale  under  an  execution, 

21    Sexton  vs.  Breese,  135  N.  Y.,  387. 

Tripp  vs.  Hascig,  20  Mich.,  258. 

Herron  vs.  Herron,  47  Ohio  St.,  544;  9  L.  R.  A.,  667. 
"    Rough  vs.  Warner,  76  Mich.,  375. 

See  Stael  vs.  Wilbur,  77  N.  Y.,  158. 
"    Batterman  vs.  Albright,  122  N.  Y.,  484. 

Caldwell  vs.  Aslop,  48  Kans.,  571;  17  L.  R.  A.,  782. 
"    Caraufle  vs.  Cooley.  33  Kans.,  137. 

Richards  vs.  Knight.  78  Iowa,  69;  4  L.  R.  A.,  453. 
*    McKenzie  vs.  Larnpley,  31  Ala.,  526. 


IS  NATURE  OF  REAL  PROPERTY. 

the  same  as  other  personal  property;38  and  may  be  bartered 
and  sold,  subject  only  to  the  laws  governing  personal  prop- 
erty.37 

It  is  sometimes  difficult  to  tell  whether  a  particular  growth 
is  fructus  industriales  or  fructus  naturales.  Fruit  is  generally 
classed  as  fructus  naturales;  but  in  one  case  in  which  fruit 
required  an  annual  expense  and  labor,  it  was  held  to  be 
fructus  industriales.38 

Hops  do  not  require  an  annual  planting,  but  require  an 
annual  manuring  and  labor  for  their  existence  and  are  so 
largely  a  product  of  labor,  that  they  have  been  classed  as 
fructus  industriales.39 ' 

The  principles  relating  to  things  attached  to  the  soil  and 
which  determine  what  is  real  and  what  is  personal  property, 
find  their  most  frequent  application  in  cases  arising  under  the 
statute  of  frauds. 

The  fourth  section  of  the  statute  requires,  in  part,  that  no 
action  shall  be  brought  upon  any  contract  for  the  sale  of  land 
or  any  interest  in  or  concerning  land,  unless  the  agreement, 
or  a  memorandum  thereof  be  in  writing  and  signed  by  the 
party  to  be  charged  thereby.  The  seventeenth  section  relates 
to  the  sale  of  "goods,  wares  and  merchandise,"  and  provides 
that  no  contract  for  the  sale  of  goods,  wares  and  merchandise 
for  the  price  of  £10  and  upwards  shall  be  allowed  to  be  good, 
unless  the  buyer  shall  receive  and  accept  part  of  the  goods  so 
sold,  or  give  something  in  earnest  to  bind  bargain  or  in  part 
payment,  or  unless  some  note  or  memorandum  of  the  bargain 
be  made  and  signed  by  party  to  be  charged  by  such  contract. 

A  careful  reading  of  this  statute  will  show  that  if  the  par- 
ticular thing  attached  to  the  surface  is  a  part  of  the  realty, 

**    Parkham  vs.  Thompson.  2  J.  J.  Marshall  (Ky.),  159. 

Preston  vs.  Ryan,  45  Mich..  74. 

Penhollow  vs.  Dwight,  7  Mass.,  34. 
"     Cruie  vs.  Tifts,  65  Ga.,  644. 
"    Purner  vs.  Piercy,  40  Md..  212. 
"    Stewart  vs.  Doughty,  9  John.  (N.  Y.),  108. 


NATURE  OF  REAL  PROPERTY.  19 

a  contract  in  reference  to  same  must  be  in  writing;  but  if  it  is 
not  a  part  of  the  realty,  a  contract  in  reference  to  it  need  not 
be  in  writing,  if  its  value  is  less  than  $50,  or  if  there  is  a  partial 
delivery  and  acceptance,  or  if  something  is  given  in  earnest  to 
bind  the  bargain,  or  if  there  is  a  partial  payment. 

Applying,  then,  the  principles  enunciated,  to  questions  re- 
lating to  the  statute  of  frauds,  we  have  the  following  proposi- 
tions: 

ANY  CONTRACT  WHICH  VESTS  IN  THE  BUYER  AN  INTER- 
EST IN  FRUCTUS  NATURALES,  BEFORE  THEIR  SEVERANCE, 
IS  A  CONTRACT  IN  REFERENCE  TO  AN  INTEREST  IN  LAND, 
AND  MUST  BE  IN  WRITING,  AS  REQUIRED  BY  THE  FOURTH 
SECTION  OF  THE  STATUTE  OF  FRAUDS. 

Thus,  an  agreement  vesting  a  present  interest  in  standing 
trees  or  in  the  soil  or  any  of  its  natural  products,  must  be  in 
writing.40 

ANY  AGREEMENT  WHICH  VESTS  IN  THE  BUYER  AN  IN- 
TEREST IN  FRUCTUS  INDUSTRIALES  BEFORE  OR  AFTER 
THEIR  SEVERANCE,  IS  A  CONTRACT  IN  REFERENCE  TO  PER- 
SONALTY, AND  IS  GOOD  IF  IT  COMPLIES  WITH  THE  SEV- 
ENTEENTH SECTION*  OF  THE  STATUTE  OF  FRAUDS. 

Thus,  a  sale  of  crops,  whether  it  vests  an  interest  before 
or  after  severance,  or  whether  the  crops  be  mature  or  imma- 
ture, does  not  relate  to  an  interest  in  land,  and  does  not  come 
within  the  fourth  section  of  the  Statute  of  Frauds.41 

We  shall  afterward  see  that  things  attached  to  the  surface, 
if  severed  to  such  an  extent  as  to  lose  the  characteristics  of 
real  property,  become  personal  propertj^.  This  being  true,  many 
courts  as  a  logical  consequence  adopt  the  following  rule: 

40  Slocum  vs.  Seymour,  36  N.  J.  L.,  139. 
Miller  vs.  Zufall,  113,  Pa.  St.,  365. 

Herth  vs.  Graham,  19  L.  R.  A.,  721  (Ohio). 

41  Marshall  vs  Ferguson,  23  Cal.,  65. 
Heard  vs.  Fairbanks,  46  Mass.,  111. 


20  NATURE  OF  REAL  PROPERTY. 

IF  THE  CONTRACT  IS  FOB  THE  SALE  OF  FBUCTUS  NAT- 
UBALES  THEN  ATTACHED  TO  THE  SOIL,  BUT  WHICH  ABE 
TO  BE  SEVEBED,  AND  THE  CONTBACT  DOES  NOT  CONTEM- 
PLATE A  VESTING  OF  TITLE  UNTIL  AFTEB  SEVEBANCE, 
SUCH  AGBEEMENT  IS  FOB  THE  SALE  OF  GOODS,  AND  IS  GOV- 
BBNED  BY  THE  SEVENTEENTH  SECTION.42 

This  principle  is  frequently  applied  to  contracts  in  refer- 
ence to  standing  trees,  which,  are  to  be  severed,  either  by  the 
purchaser  or  the  seller.  The  requisites  as  to  the  formalities 
and  execution  of  such  a  contract,  as  we  have  seen,  depend  on 
the  intention  of  the  parties  as  to  whether  or  not  a  present  in- 
terest vests  in  the  purchaser. 

In  many  States,  in  the  absence  of  a  clear  intention  that  a 
present  interest  should  pass,  the  courts  are  inclined  to  construe 
the  agreement  to  be  an  executory  contract  to  purchase  chat- 
tels, with  a  special  license  to  enter  and  remove  them. 

While  this  contract  is  executory,  no  title  passes  to  the  pur- 
chaser, and  the  seller  may  at  any  time  revoke  the  license  to  en- 
ter. This  revocation  of  the  license  does  not  defeat  any  valid 
title,  for  as  yet  none  has  vested  in  the  purchaser,  and  he  has 
therefore  no  action  to  recover  the  trees;  but  the  revocation  is 
a  breach  of  the  contract,  the  remedy  for  which  is  an  action  for 
damages,  as  in  the  common  case  of  a  failure  or  refusal  to  de- 
liver the  ordinary  chattels  in  pursuance  of  a  contract  of  sale.43 

If  the  agreement  to  purchase  and  license  to  enter  are  acted 
upon  and  the  trees  are  severed  by  the  purchaser,  they  at  once 
vest  in  the  purchaser  and,  even  though  they  are  not  removed 
from  the  seller's  property,  the  latter  may  not  now  revoke  the  li- 
cense to  enter  and  take  the  trees  already  cut;  for  the  trees  be- 
ing severed  and  the  title  having  passed  to  the  purchaser,  he 
may  enter  and  remove  them  under  the  rule  that  where  the 
chattels  of  one  person  are  placed  or  left  on  the  land  of  an- 

"Killmore  vs.  Hewlett,  48  N.  Y.,  569. 
41    Drake  vs.  Wells.  11  Allen  (Mass.),  141. 
Terrel  vs.  Frazier,  79  Ind..  473. 


NATURE  OF  REAL  PROPERTY.  21 

other,  with  the  latter s  permission,  the  owner  of  the  chattel 
has  an  implied  irrevocable  license  to  enter  and  remove  them.44 

IN  SOME  STATES  A  CONTBABY  BULE  PBE VAILS  AND  A 
SALE  OF  STANDING  TIMBEB,  WHETHEB  OB  NOT  THE  PAS- 
TIES CONTEMPLATE  ITS  IMMEDIATE  SEVEBANCE  AND  BE- 
MOVAL  BY  THE  VENDEE,  IS  A  CONTBACT  CONCERNING  AN 
INTEBEST  IN  LAND,  WITHIN  THE  MEANING  OF  THE 
FOUBTH  SECTION  OF  THE  STATUTE  OF  FBAUDS,  AND  IS 
VOIDABLE  BY  EITHEB  PABTY  IF  NOT  IN  WBITING." 

The  question  frequently  arises  as  to  the  right  to  fructus  indus- 
triales  or  emblements,  planted  by  a  tenant,  when  his  estate 
terminates  before  the  maturity  of  the  crop. 

The  law  always  endeavors  to  promote  and  encourage  agri- 
culture. For  this  reason  it  has  been  held  that  manure  made 
on  the  land  is  a  part  of  it  and  must  remain  there  on  the  re- 
moval of  a  tenant.  For  a  like  reason  the  law  will  preserve 
to  every  tenant  the  crops  that  he  has  sown,  providing  that 
at  the  time  the  crop  was  sown  there  was  a  reasonable  expec- 
tation that  it  might  mature  before  the  expiration  of  the  ten- 
ancy, and  providing  also  that  the  tenancy  was  not  terminated 
by  the  act  of  the  tenant. 

Any  other  rule  would  tend  to  discourage  the  planting  and 
cultivation  of  crops  by  a  tenant  whose  term  is  of  uncertain 
duration. 

In  order  that  this  right  to  reap  by  a  tenant  after  the  ter- 
mination of  his  tenancy  may  arise  the  following  conditions 
must  exist. 

1.  The  tenancy  must  be  of  uncertain  duration,  as  a  ten- 
ancy for  life  or  at  will. 

44    Yale  vs.  Seeley,  15  Vt.,  221. 

Owens  vs.  Lewis,  46  Ind.,  499. 

See  Drake  vs.  AVells,  11  Allen  (Mass.),  141. 

Leonard  vs.  Meaford,  85  Md.,  666;  37  L.  R.  A.,  449. 
"    Herth  vs.  Graham,  Ohio,  19  L.  R.  A.,  721. 

Miller  vs.  Zufall,  113  Pa.,  317. 

Olmstead  vs.  Niels,  7  N.  H.,  522. 

Heflin  vs.  Bingham,  56  Ala.,  574. 


22  NATURE  OF  REAL  PROPERTY. 

2.  The  tenancy  must  be  terminated  by  the  act  of  God  or 
of  some  person  other  than  the  tenant. 

3.  The  product  must  come  within  the   class  known   as 
fructus  industriales. 

It  follows  from  these  propositions  that  a  tenant  whose 
term  is  certain  to  expire  before  the  maturity  of  the  crops, 
and  a  tenant  who  by  his  own  act  terminates  his  tenancy,  is 
not  entitled  to  reap  the  crop  at  its  maturity. 

There  is,  however,  some  limitation  to  this  ruling.  If  a 
tenant  after  planting  his  crop  and  before  any  default  in  the 
terms  of  his  tenancy,  sells  the  crop  to  another  and  then  ter- 
minates the  lease,  the  purchaser  is  not  chargeable  with  the 
tenants  default  and  may  afterwards  enter  and  reap  the  crop 
on  its  maturity. 

To  return  again  to  the  discussion  of  things  attached  to  the 
surface  of  the  earth,  there  remains  only  one  other  class  to 
consider,  viz:  things  attached  to  soil  solely  by  the  labor  of 
man. 

This  class  is  the  most  comprehensive,  and  includes  all  arti- 
ficial attachments,  such  as  buildings,  fences,  railroads  and  im- 
provements of  all  kinds.  The  law  relating  to  this  class  will  be 
discussed  under  the  head  of  fixtures. 

There  are  several  special  species  of  property  which,  under 
certain  circumstances,  are  considered  by  law  as  real  property, 
but  which  do  not  have  the  general  characteristics  of  real 
property. 

MANURE. 

When  manure  is  made  on  agricultural  land  it  is  regarded  as 
a  part  of  the  land  upon  which  it  is  made. 

The  rule  originated  out  of  a  desire  to  benefit  agriculture; 

for  it  was  considered  essential  to  the  successful  cultivation  of 

the  land  that  the  manure  made  on  it  should  be  retained  for 

its  use.46    For  this  reason,  when  agricultural  land  is  conveyed, 

"Fay  vs.  Muzzey,  13  Gray  (Mass.),  53. 


NATURE  OF  HEAL  PROPERTY.  23 

the  manure  on  it,  whether  piled  up  or  scattered,  is  considered 
to  be  a  part  of  the  realty,  and  passes  to  the  grantee;  and  it  has 
been  held,  as  between  a  landlord  and  tenant,  that,  in  the  ab- 
sence of  a  special  agreement  or  a  local  custom,  the  tenant 
could  not  remove  manure  made  on  the  land  from  it  on  the 
termination  of  his  lease.47 

So  it  has  been  held  that  manure  belonging  to  the  owner 
of  a  farm  was  not  personalty  and  could  not  be  taken  under 
an  execution  as  personal  property.48  The  rule  applies  only  to 
manure  made  upon  the  premises,  and  manure  hauled  from  other 
places  is  personal  property  and  not  a  part  of  the  realty.40 

For  the  purpose  of  sale,  separate  from  the  land,  manure  is 
treated  as  personalty,  and  the  contract  is  within  the  seven- 
teenth section  of  statute  of  frauds.50 

If  the  manure  is  not  made  upon  agricultural  land,  but  at 
a  place  where  it  could  not  be  used  for  agriculture,  as  in  a  city, 
the  reason  of  the  rule  fails  and  it  is  treated  as  personal  prop- 
erty.51 So  it  was  held  that  a  tenant  had  a  right  to  remove  ma- 
nure produced  on  leased  premises  by  stock  in  excess  of  that 
maintainable  by  the  products  of  the  premises  from  fodder 
produced  elsewhere.52 

CHURCH  PEWS. 

In  some  States,  church  pews  are  regarded  as  real  prop- 
erty;53 and,  in  these  States,  for  the  purpose  of  statute  of  frauds, 
conveyancing  and  descent,  are  governed  by  laws  relating  to 
real  property.54 

"Middlebrook  vs.  Corwin,  15  Wend.,  169. 

Contra,  Southwick  vs.  Ellison,  2  Iredell,  326. 
^Sawyer  vs.  Twiss,  26  N.  H.,  345. 
"Haslem  vs.  Lockwood,  37  Conn.,  500. 
"Strong  vs.   Doyle,  110  Mass.,  92. 
"Fletcher  vs.  Herring,  112  Mass.,  382. 
"Pickering  vs.  Moore  (N.  H.),.31  L.  R.  A.,  698. 
B3Jackson  vs.  Rounesville,  46  Mass.,  127. 
"Brumfield  vs.  Carson,  22  Ind.,  94. 

Sohier  vs.  Trinity  Church,  109  Mass.,  1. 

Aylward  vs.  O'Brien,  160  Mass..  118;  22  L.  R.  A.,  206. 


24  NATURE  OF  REAL  PROPERTY. 

The  owner  of  the  pew  in  the  States  holding  this  view  is  not 
the  owner  of  the  land  under  it,  or  of  the  church  in  which  the 
pew  is  situated,  and  his  right  to  occupy  the  same  expires  with 
the  destruction  of  the  church.55 

The  doctrine  as  to  the  nature  of  pews  does  not  prevail  in 
most  States. 

HEIRLOOMS. 

Heirlooms  are  such  chattels,  as  by  force  of  custom  pass  to 
the  heir  and  not  to  the  administrator. 

In  England,  family  jewels,  title  deeds,  coats  of  arms,  were 
examples  of  this  class  of  property. 

Before  taking  up  the  discussion  of  fixtures,  it  may  be  the 
most  opportune  place  to  consider  what  effect  the  severance  of 
things  imbedded  or  attached  to  the  surface  has  upon  its  nature 
and  classification. 

AS  A  GENERAL  RULE,  IF  ANY  OF  THE  MATERIALS  AD- 
HERING TO  OR  IMBEDDED  IN  THE  EARTH,  EITHER  BY 
NATURE  OR  BY  LABOR,  ARE  COMPLETELY  SEVERED  FROM 
THE  SOIL  BY  A  PERSON  HAVING  THE  RIGHT  TO  DO  SO, 
THEY  CEASE  TO  BE  A  PART  OF  THE  LAND,  AND  BECOME 
PERSONAL  PROPERTY. 

If  property  is  to  be  classified  by  its  nature,  and  if  one  of 
the  characteristics  of  real  property  is  its  immovability,  it  fol- 
lows that  a  loss  of  that  characteristic  will  change  its  character. 
Thus,  the  soil  itself,  if  severed  from  the  land,  becomes  per- 
sonal property,  and  a  personal  action  may  be  maintained  for 
its  conversion.56  So  trees,  completely  severed  from  the  land, 
are  not  subject  to  the  laws  of  real  property,  and  are  considered 
as  timber  or  lumber.57 

"Brownson  vs.  Chapman,  63  N.  Y.,  625. 

"Riley  vs.  Boston  Water  Power  Co.,  11  Cush.,  11. 

"Coolc   vs.  Whiting,   1G   111.,  48O. 

Cook  was  the  owner  of  a  certain  farm  and  previous  to  the  sale  of 
the  property  to  the  defendant  he  cut  down  trees  and  hewed  them  into 
timbers,  posts  and  round  logs. 


NATURE  OF  REAL  PROPERTY.  25 

Trees  cut  or  blown  down,  and  remaining  as  they  have  fallen, 
are  not  considered  as  severed  ;58  and  it  has  been  held,  as  be- 
tween, vendor  and  vendee,  that  trees  severed  by  vendor  before 
transfer  and  not  made  into  logs,  were  a  part  of  the  realty. 

So  it  was  held  that  petroleum  oil,  as  it  formed  in  the  cavities 
of  the  rock,  is  part  of  the  realty;  but  when  it  reaches  the  sur- 
face it  becomes  personal  property.59 

It  must  not  be  understood  that  immovability  is  always  the 
test  in  determining  what  is  real  or  personal  property.  Ordin- 
arily, the  test  of  movability  or  immovability  is  useful;  but 
there  are  classes  of  property  having  the  attribute  of  movability 
and  which  are  held  to  be  real  property.  Thus,  in  some  States 
the  rolling  stock  of  a  railroad  is  held  to  be  real  property. 


Plaintiff  subsequently  conveyed  the  farm  to  the  defendant  and  the 
latter  took  possession  of  the  farm  and  of  the  timber  and  logs.  On  the 
refusal  of  the  defendant  to  give  up  the  timber  and  logs,  plaintiff  com- 
menced an  action  in  trover  to  recover  their  value. 

The  court  held  that  the  separation  of  the  trees  by  the  act  of  the 
owner  was  complete,  and  that  they  were  converted  into  personalty 
previous  to  the  sale  to  defendant  and  that  they  did  not  pass  to  the 
grantee  as  part  of  the  realty. 

"Bracket!  vs.  Goddard,  54  Me.,  3O9. 

Action  to  recover  the  price  of  certain  logs  sold  by  defendant  to  the 
plaintiff. 

The  defendant,  while  owning  certain  land,  cut  down  a  quantity  of 
hemlock  trees,  and  subsequently  conveyed  the  property  to  another.  At 
the  time  of  transfer  the  hemlock  trees  were  lying  on  the  lot  where  they 
had  been  cut,  with  the  tops  remaining  thereon.  After  transfer,  the 
defendant  sold  the  hemlock  to  plaintiff,  and,  on  refusal  of  the  grantee 
of  defendant  to  deliver  the  hemlock,  he  sued  to  recover  the  price  paid 
defendant. 

The  question  presented  was  as  to  whether  the  title  to  the  hemlock 
was  in  the  defendant  or  his  grantee.  The  court  held  that  the  hemlock 
being  unmanufactured  was  much  the  same  as  timber  blown  down  or 
severed  by  a  stranger,  and  that,  reasoning  by  analogy,  the  hemlock 
was  a  part  of  the  realty  and  did  not  belong  to  defendant  at  the  time  of 
sale  and  that  it  belonged  to  defendant's  grantee  under  the  deed.  The 
court  intimated  that  had  the  hemlock  been  cut  into  logs  or  hewed  into 
timber,  a  different  rule  would  have  prevailed. 

"Kelley  vs.  Ohio  Oil  Co.,  57  Ohio  St.,  317;  39  L.  R.  A.,  765. 


CHAPTER  II. 

FIXTURES. 

The  chief  difficulties  which  arise  in  determining  what  is 
real  and  what  is  personal  property,  are  to  be  found  in  classi- 
fying those  things  which  have  been  added  to  the  land  by  the 
labor  of  man.  Among  these  are  included  planted  trees  and 
shrubs,  cultivated  crops,  fences,  buildings,  and  things  affixed 
to  existing  buildings  which  are  commonly  called  fixtures.  The 
word  fixture  is  sometimes  used  by  the  courts  as  meaning  a 
chattel,  that  is,  an  article  of  personal  property,  which,  by  hav- 
ing been  affixed  to  real  property,  has  become  a  part  of  the  real 
property.  Sometimes  it  is  used  to  designate  a  chattel  which, 
although  it  has  been  affixed  to  real  property,  still  retains  its 
character  of  personal  property.  The  word  being  used  in  both 
senses  is  to  be  defined  as  follows: 

A  FIXTURE  IS  A  CHATTEL  WHICH  HAS  BEEN  AFFIXED 
TO  REAL  PROPERTY,  EITHER,  TO  BE  USED  TEMPORARILY 
IN  CONNECTION  WITH  THE  REAL  PROPERTY,  OR,  TO  ADD 
TO  ITS  PERMANENT  VALUE. 

In  the  first  case  the  fixture  retains  its  character  as  personal 
property;  in  the  second  case  it  becomes  a  part  of  the  realty. 
From  this  statement  the  next  proposition  logically  flows. 

THE  INTENT  WITH  WHICH  A  CHATTEL  IS  AFFFIXED  TO 
REAL  PROPERTY  DETERMINES  ITS  SUBSEQUENT  CHARAC- 
TER AS  REAL  OR  PERSONAL  PROPERTY.1 

Having  said  this,  it  might  be  thought  that  it  would  be  very- 
easy  to  determine  whether  a  given  chattel  is  real  or  personal 

'Eaves  vs.  Estes,  10  Kan.,  314;   Funk  vs.  Brigaldi,  4  Daly  (N.  Y.), 

359 

Binkley  vs.  Forkner,  117  Ind.,  176;  3  L.  R.  A.,  33t 
Morley  vs.  Hoyt,  62  Conn.,  542;  19  L.  R.  A.,  611. 


FIXTURES.  27 

property,  because  probably  the  one  who  affixes  it  does  it  in- 
tending either  that  it  shall  keep  its  place  only  temporarily 
or  that  it  shall  remain  permanently.  This  is  not  always  true, 
but  assuming  that  it  is  for  the  purpose  of  elucidating  the  sub- 
ject further,  a  difficulty  arises  in  applying  the  test.  The  law 
does  not  permit  a  man,  in  a  controversy  as  to  a  property  right 
between  himself  and  another,  to  maintain  his  claim  by  swear- 
ing to  an  intent,  or  state  of  mind  which  was  not  disclosed  to 
.the  other  party  to  the  controversy.  Suppose,  for  instance, 
the  owner  of  a  dwelling  house  were  to  put  into  the  house  a 
very  expensive  set  of  gas  fixtures  for  a  temporary  purpose,  in- 
tending after  the  temporary  purpose  had  been  accomplished,  to 
replace  them  with  cheaper  and  inferior  fixtures.  While  the 
expensive  fixtures  are  in  place,  he  makes  a  contract  to  sell  the 
house  without  disclosing  to  the  purchaser  his  purpose  as  to 
the  existing  fixtures.  He  will  not  afterwards  be  heard  to  say 
as  between  himself  and  his  vendee  that  these  fixtures  were  not 
part  of  the  realty  because  when  he  put  them  in  he  only  in- 
tended to  put  to  a  temporary  use.  In  the  absence  of  notice,  or 
a  specific  agreement,  the  purchaser  has  a  right  to  demand  that 
the  fixtures  which  were  there  when  he  agreed  to  buy  shall  be 
considered  a  part  of  the  realty.2 


=In  Ridgreway  Stove  Co.  vs.  Way,  141    Mass.,  557, 

it  appeared  that  the  owner  of  two  dwelling  houses  had  purchased  and 
set  up  a  portable  furnace  in  each  house.  It  was  agreed  between  him 
and  the  seller  of  the  furnaces  that  the  title  to  the  furnaces  should  not 
pass  until  they  were  fully  paid  for.  ^Before  they  were  paid  for  the 
owner  of  the  dwelling  houses  sold  the  property  to  one  who  had  no 
notice  of  this  agreement  and  who  supposed  the  furnaces  were  part  of 
the  realty.  In  a  suit  between  the  innocent  purchaser  and  the  seller  of 
the  furnaces,  it  was  held  that  the  furnaces  were  part  of  the  realty,  and 
the  title  to  them  passed  to  the  innocent  purchaser  by  his  deed.  The 
furnaces  were  set  up  and  connected  with  a  system  of  pipes  and  registers 
in  the  usual  manner. 

The  same  principles  are  upheld  in  Cunningham  vs.  Cureton,  96  Ga., 
489.     In  that  case  the  controversy  was  between  a  mortgagee  without 


28  FIXTURES. 

Since  an  unexpressed  intent  cannot  be  allowed  to  be  the 
test  as  to  whether  a  fixture  is  personalty  or  realty,3  we  are 
now  to  see  what  tests  the  law  does  resort  to  in  order  to  de- 
termine the  question  of  intent  in  any  given  case.  Whether  or 
not  a  fixture  becomes  a  part  of  the  realty  by  being  affixed  to  it, 
depends  partly  upon  the  permanency  and  solidity  of  the  method 
of  its  attachment,  and  partly  upon  the  relation  which  the  per- 
son who  affixes  it  bears  to  the  land  and  upon  his  interest  in 
the  chattel.  If  he  is  the  owner  both  of  the  land  and  of  the  chat- 
tel, the  ancient  doctrine  of  our  law  still  prevails.  It  is  ex- 
pressed in  this  maxim: 

"WHATEVER  IS  AFFIXED  TO  THE  SOIL,  BELONGS  THERE- 
TO."* 

When  the  owner  of  a  chattel  affixes  it  to  land  of  which  he  is 
the  absolute  owner  our  law  holds  that  he  does  it  with  the  pur- 
pose of  adding  to  the  permanent  value  of  the  land,  and  he 
makes  it  a  part  of  the  land.  While  he  owns  the  land  he  may 
dissever  it  and  make  it  again  a  chattel,5  just  as  he  may  cut 
down  a  tree  and  thereby  make  it  personal  property.  But  if  he 
conveys  the  land  by  deed,  mortgage  or  lease,  or  contracts  to 
do  so,  while  the  fixture  remains  affixed,  it  is  considered  as  a 
part  of  the  realty  and  passes  by  the  conveyance  just  as  much 
as  a  tree.6  The  importance  of  being  able  to  distinguish  be- 
tween fixtures  which  become  part  of  the  realty  and  those 
which  remain  personal  property  originates  in  the  way  real 
property  is  ordinarily  conveyed  or  encumbered.  The  most 

notice  and  the  seller  of  planers,  molders,  belting  and  shafting,  which 
had  been  placed  in  and  attached  to  a  mill  for  milling  purposes. 

Stillman  vs.  Flenniken,  58  Iowa,  450;  Funk  vs.  Brigaldi,  4  Daly 
(N.  Y.),  359. 

3Rogers  vs.  Brokaw,  25  N.  J.  Eq.,  496. 

Blancke  vs.  Rogers,  26  N.  J.  Eq.,  563. 

*Quicquid  plantatur  solo  solo  cedit. 

5Gooding  vs.  Riley,  50  N.  H.,  400. 

"Leonard  vs.  Clough,  133  N.  Y.,  292;  16  L.  R.  A.,  305. 


FIXTURES.  29 

usual  form  of  a  land  contract,  deed,  mortgage,  or  lease  of  land 
simply  describes  the  land,  either  by  its  boundaries  or  by  refer- 
ence to  a  recorded  plat.  If  there  are  buildings  on  the  land,  they 
are  not  mentioned,  although,  ordinarily,  they  go  with  the  land. 
If  there  is  valuable  machinery  in  the  buildings,  this  ia  not  men- 
tioned, although  it  may,  or  may  not,  go  with  the  land.  Now, 
as  we  have  said,  every  fixture,  affixed  by  a  person  who  is  at  the 
same  time  owner  of  both  the  land  and  the  fixture,  becomes  at 
once  a  part  of  the  realty.  So  far  it  is  plain  sailing.  The  diffi- 
culties begin  when  the  fixture  is  attached  to  the  land  by  a  per- 
son who  is  not  at  the  time  owner  of  both  the  land  and  the 
fixture.  He  may  be  the  owner  of  the  land  and  not  of  the  chat- 
tel; he  may  be  owner  of  the  chattel  and  not  of  the  land;  he  may 
not  own  either.  He  may  mistakenly  believe  that  he  owns  the 
land  while  he  is  building  upon  it,  and  the  true  owner  of  the 
land  may,  or  may  not,  share  in  the  error,  or  may,  or  may  not, 
know  that  another  is  building  on  his  land.  He  may  be  a  mere 
trespasser.  These,  and  other  varying  states  of  fact  must  be 
considered.  And,  first,  as  to  the  case  when  the  fixture  is  at- 
tached by  one  who  owns  the  land  but  does  not  own  the  chattel. 
This  situation  divides  itself  into  two  classes;  those  in  which 
the  chattel  is  attached  to  the  land,  wrongfully,  without  the 
consent  of  its  owner,  and  where  the  owner  of  the  chattel  con- 
sents to  its  annexation  to  the  realty. 

As  the  law  does  not  allow  any  man  to  profit  by  his  own 
wrong,  it  is  manifest  that  no  man  can  make  that  a  part  of  his 
realty  which  is  the  property  of  another,  and  which  he  has 
wrongfully  affixed  to  the  realty.7 

'In  Honzik  vs.  Delaellse,  55  A\  is.,  494. 

it  appeared  that  Honzik  was  in  possession  of  real  estate,  under  a  valid 
oral  land  contract.  Honzik  had  paid  for  the  land  but  had  not  obtained 
a  deed.  Delaglise  executed  a  deed  of  the  land  to  one  Putnam,  who, 
thereupon,  with  full  knowledge  of  Honzik's  rights,  unlawfully  expelled 


30  FIXTURES. 

But  where  the  owner  of  a  chattel  permits  the  owner  «»f  land 
to  attach  the  chattel  to  the  land  under  some  agreement  by 
which  the  chattel  is  not  to  become  a  part  of  the  realty,  a  differ- 
ent question  arises,  not  as  between  the  owner  of  the  chattel  and 
the  owner  of  the  land,  but  as  between  the  owner  of  the  chattel 
and  a  purchaser  of  the  land  who  buys  the  land  in  ignorance  of 
the  agreement  that  the  particular  fixture  is  to  retain  its  char- 
acter of  personal  property.  Upon  this  question  the  law  is  that 
such  an  agreement,  as  against  a  purchaser  without  notice,  is 
void,  and  jthe  fixture  passes  as  a  part  of  the  realty.8 

This  is  in  harmony  with  a  general  principle  of  the  law  that 
where  one  of  two  innocent  persons  must  suffer  a  loss  it  shall 
fall  upon  him  whose  conduct  made  it  possible  for  the  other  to 

her  by  force  and  took  possession  of  the  land,  and  thereupon  went  on 
and  built  a  dwelling  house  on  the  land.  In  a  suit  by  Honzik  to  compel 
Delaglise  to  give  her  a  deed  and  to  prevent  Putnam's  grantee  from 
removing  the  building  from  the  land,  which  the  case  states,  "could  be 
removed  without  injury  to  the  premises  except  as  it  would  be  necessary 
to  remove  fences  for  that  purpose,  and  except  that  it  would  leave  the 
cellar  uncovered;"  it  was  held,  that  the  building  was  a  part  of  the 
realty  and  not  subject  to  removal,  upon  the  ground  that  where  a  wilful 
trespasser  erects  a  building  upon  the  land  of  another  he  thereby  makes 
it  a  part  of  the  realty.  And  the  fact  that  he  thought  that  Honzik's 
contract  was  invalid  was  of  no  consequence  in  a  case  where  he  had  full 
notice  of  her  equities. 

Huebschman  vs.  McHenry,  29  Wis.,  655. 

Ridgway  Stone  Co.  vs.  Way,  14  Mass.,  547. 
Wade  vs.  Donan  Brewing  Co.,  10  Wash.,  284. 

In    I  ihl.«-tts  vs.  Home,  C5  \.  II..  242, 

it  appeared  that  Home  had  sold  to  a  mill  owner  an  engine  and  necessary 
machinery  for  a  mill,  which  was  placed  in  and  annexed  to  the  mill. 
The  mill  owner  gave  Home  a  chattel  mortgage  on  the  engine  and 
machinery  to  secure  him  for  his  pay,  and  this  mortgage  was  filed  with 
the  township  clerk.  Afterwards  the  mill  owner  gave  a  real  estate  mort- 
gage to  Tibbetts,  who  had  no  actual  notice  of  the  chattel  mortgage.  The 
chattel  mortgage  not  having  been  paid,  Home  undertook  to  foreclose  it. 
Tibbetts  filed  a  bill  for  an  injunction  to  restrain  Home  from  foreclosing 
the  chattel  mortgage,  on  the  ground  that  the  engine  and  machinery 
were  part  of  the  realty.  And  it  was  held  that,  as  between  Tibbelts  and 
Home,  the  engine  and  machinery  were  part  of  the  realty,  the  filing  of 
the  chattel  mortgage  not  being  constituted  a  notice  of  a  lien  on  that 
which  appeared  to  be  a  part  of  the  realty.  Davenport  vs.  Shauts, 
43  Vt,  546. 


FIXTURES.  31 

bo  deceived.  By  consenting  that  his  chattel  shall  be  annexed 
to  the  realty  under  such  circumstances  as  makes  it  appear  to 
be  part  of  the  realty,  the  owner  of  the  chattel  makes  it  possible 
that  a  purchaser  shall  be  deceived  into  supposing  that  it  is  a 
part  of  the  realty,  and  he  is  therefore  estopped,  as  against  an 
innocent  purchaser  of  the  realty,  from  claiming  that  it  is  not 
a  part  of  the  realty. 

If  the  purchaser  have  notice  of  the  agreement  by  which 
the  fixture  remains  personal  property,  he  is  bound  by  it.0 

The  rule  now  under  discussion  has  no  application  except 
where  there  is  an  innocent  purchaser,  by  which  is  in- 
tended, one  who  parts  with  his  money  or  something  of  value 
to  acquire  an  interest  in  the  realty  under  the  honest  belief  that 
the  fixture  in  question  is  a  part  of  the  realty.10 

It  has  heretofore  been  stated  that  in  determining  the  un- 
expressed intent  with  which  a  chattel  was  affixed  to  the  realty, 
the  courts  look  to  two  things:  first,  what  is  the  relation  be- 
tween the  owner  of  the  land  and  the  owner  of  the  chattel;  and, 
second,  how  solidly  and  securely  is  the  chattel  affixed.  The 
general  principles  governing  courts  in  the  application  of  these 
two  tests  may  be  stated  as  follows: 


"Crippen  vs.  Morrison,  13  Mich.,  23. 
10In  St.  Paul  Furniture  Co.  vs.  Snuer,    63  N.  W.,  Hep.,  HO, 

it  appeared  that  the  plaintiff  had  made  a  conditional  sale  of  a  bar 
counter,  back  bar,  and  plate  mirror  to  a  tenant  of  the  defendant,  who 
rented  a  building  of  the  defendant  for  saloon  purposes.  The  articles 
were  attached  to  the  building  in  such  a  manner  that  they  were  easily 
removable  without  injury  to  the  building.  After  the  tenant  had  moved 
out,  leaving  the  fixtures  in  the  building  and  not  having  paid  fox  them, 
plaintiff  demanded  permission  to  take  away  the  fixtures,  which  was 
refused  by  the  landlord.  In  an  action  to  recover  their  value  it  was 
held  that  the  fixtures  did  not  become  a  part  of  the  realty  and  that 
plaintiff  should  recover.  It  was  also  ruled  that  the  ordinary  rule 
requiring  a  tenant  to  remove  fixtures  during  his  term  or  not  at  all  had 
no  application  to  a  case  of  this  kind. 

See  also  Baldwin  vs.  Young,  17  Sou.  Rep.  (La.),  883;  Hawkins  vs. 
Hersey,  86  Mo.,  394. 


32  FIXTURES. 

THE  FACT  THAT  A  MAN  HAS  A  FREEHOLD  ESTATE  IN 
THE  LAND,  TO  WHICH  HE  ANNEXES  A  CHATTEL  WHICH  IS 
HIS  OWN  PROPERTY,  IS  EVIDENCE  THAT  HE  ANNEXES  IT 
FOR  THE  PURPOSE  OF  ADDING  TO  THE  PERMANENT  VALUE 
OF  THE  LAND  AND  CONSEQUENTLY,  THAT  HE  INTENDS  TO 
MAKE  IT  A  PART  OF  THE  REALTY. 

THE  FACT  THAT  A  MAN  IS  A  MERE  TENANT  FOR  YEARS 
OF  LAND,  TO  WHICH  HE  ANNEXES  A  CHATTEL  WHICH  IS 
HIS  OWN  PROPERTY,  IS  EVIDENCE  THAT  HE  ANNEXES  IT 
TO  BE  TEMPORARILY  USED  AS  A  PART  OF  THE  REAL  PROP- 
ERTY, AND  CONSEQUENTLY.  THAT  HE  INTENDS  THAT 
IT  SHALL  REMAIN  HIS  PERSONAL  PROPERTY  AND  NOT 
BECOME  A  PART  OF  THE  REALTY.11 

THE  FACT  THAT  A  FIXTURE  IS  LOOSELY  ATTACHED  SO 
THAT  IT  MAY  BE  READILY  DETACHED  WITHOUT  SERIOUS 
INJURY  TO  THE  FREEHOLD,  IS  EVIDENCE  THAT  IT  WAS 
NOT  INTENDED  TO  MAKE  IT  A  PART  OF  THE  REALTY. 

THE  FACT  THAT  A  FIXTURE  IS  SECURELY  AND  SUBSTAN- 
TIALLY ANNEXED  SO  THAT  IT  CANNOT  BE  DETACHED 
WITHOUT  SERIOUS  INJURY  TO  THE  FREEHOLD,  IS  EVI- 


"In    Conrad    vs.    Saginaw    Mining    Co.,    54  Mich.,  249. 

it  appeared  that  Conrad  had  given  the  Mining  Co.  a  15  years  of  lease, 
of  some  wild  land  for  mining  purposes.  The  mining  company  erected 
on  the  land  a  number  of  cheap  dwelling  houses  of  a  temporary  char- 
acter for  the  use  of  their  employes,  and  also  erected  solid  brick  and 
stone  foundations  upon  which  they  placed  large  engines  which  were 
bolted  down  solidly  to  the  ground.  The  mining  company  also  placed 
large  boilers  connected  with  the  engines  in  brick  arches,  built  from 
the  ground  and  bolted  down  in  the  most  substantial  manner.  After 
working  the  mines  for  about  ten  years  the  mining  company  decided  to 
abandon  the  mine,  and  claimed  the  right  to  remove  the  buildings  and 
machinery.  Conrad  filed  a  bill  for  an  injunction  to  prevent  the  removal 
of  the  buildings  and  machinery,  claiming  that  their  character  and  the 
manner  of  annexation  made  them  a  part  of  the  realty.  And  it  was  held, 
that  the  circumstances  showed  that  the  mining  company  never  intended 
to  make  them  a  part  of  the  realty  and  that  they  remained  personal 
property,  and  that  the  mining  company  had  a  right  to  remove  them 
during  the  term  of  the  lease. 

A  comparison  of  this  case  with  O'Brien  vs.  Kusterer,  27  Mich., 
289,  illustrates  in  a  striking  manner  the  progress  of  the  law  in  enlarg- 
ing a  tenant's  right  to  remove  fixtures. 


FIXTURES.  33 

DENCE   THAT  IT   WAS  INTENDED  TO   MAKE   IT  A  PABT   OF 
THE  REALTY." 

There  is  still  one  more  circumstance  which  the  courts  look 
to  in  determining  the  quality  of  a  fixture. 

IF  A  FIXTURE  IS  MADE  AND  FITTED  FOR  USE  IN  A  PAR- 
TICULAR BUILDING,  SO  THAT  IT  WILL  BE  USEFUL  FOR  THE 
PURPOSE  TO  WHICH  IT  IS  ADAPTED  IN  THAT  BUILDING 
AND  NOT  ELSEWHERE,  THIS  IS  EVIDENCE  THAT  IT  WAS 
INTENDED  TO  MAKE  IT  A  PART  OF  THE  REALTY.  IF  IT  CAN 
BE  EASILY  REMOVED  AND  MADE  EQUALLY  USEFUL  IN  ANY 
OTHER  BUILDING,  THIS  IS  EVIDENCE  THAT  IT  WAS  NOT 
INTENDED  TO  MAKE  IT  A  PART  OF  THE  REALTY. 

The  better  waj7  to  illustrate  the  subject  under  discussion  is 
to  select  and  illustrate  the  various  phases  in  which  it  is  pre- 
sented to  the  lawyer  iu  actual  practice.  Let  us  take  a  case 
which  involves  Lot  10  in  Block  INo.  4  of  Williams'  Subdivision 
of  out-lot  56  of  Addison's  western  addition  to  the  City  of  Co- 
lumbus, Ohio.  In  1890,  the  bare  lot  is  sold  by  Williams,  the 
owner  of  the  Subdivision,  to  Benjamin  Jones  by  a  land  con- 
tract. By  the  terms  of  the  land  contract,  Jones  pays  one-fifth 
of  the  price  down  and  is  to  pay  the  balance  in  four  equal  annual 


"McConnell  vs.  Blood,    123   Mass..  47, 

was  a  case  in  which  it  was  necessary  to  determine,  as  between  a  mort- 
gagee, and  an  assignee  of  the  mortgagor,  what  part  of  the  machinery 
in  a  shoe  factory  was  part  of  the  realty  and  what  was  personal  prop- 
erty. And  in  this  case  the  questions  involved  were  determined  by  the 
solidity  of  the  method  of  annexation,  and  also  by  considering  whether 
what  part  of  the  machinery,  which  was  easily  removable,  would  be 
equally  serviceable  for  the  use  to  which  it  was  adapted  in  any  other 
building.  It  was  held  that  "the  engine  and  boiler,  which  were  put  in 
to  supply  the  premises  with  power;  the  steam  gauge  which  is  essential 
to  the  safe  use  of  the  same;  the  water  tank  for  supplying  the  building 
with  water  for  general  use;  the  steam  pump  connected  therewith,  and 
the  shafting,  are  evidently  designed  as  permanent  additions  to  the 
realty,  and  could  not  be  removed  without  seriously  injuring  the  building 
for  use."  It  was  further  held  that  the  rest  of  the  machinery  consisting 
of  a  sole  leather  stripping  machine;  a  sole  leather  splitting  machine;  a 
sole  cutting  machine;  and  other  machines  of  like  general  character 
were  personalty,  although  more  or  less  securely  attached  to  the  building 
or  to  the  shafting  which  was  held  to  be  a  part  of  the  realty. 

See  also  Chase  vs.  Tacoma  Box  Co.  (Wash),  39  Pac.  Rep.,  639. 


34  FIXTURES. 

payments  thereafter,  with  the  stipulated  interest.  The  con- 
tract allows  Jones  immediate  possession  and  to  keep  posses- 
sion so  long  as  he  complies  with  the  terms  of  the  contract. 
Jones  having  bought  the  lot  for  a  homestead,  goes  on  and 
builds  a  house.  He  makes  no  payments  after  the  first,  and  the 
contract  is  consequently  forfeited.  The  question  arises  whether 
the  house  is  part  of  the  realty  or  whether  it  is  personalty  and 
subject  to  removal  by  Jones,  who,  in  the  meantime,  has  bought 
the  adjoining  lot,  to  which  he  proposes  to  remove  it.  In  this 
case  the  house  has  become  a  part  of  the  realty,  whether  it  is 
built  on  a  brick  or  stone  foundation,  or  simply  set  on  posts.13 
This  is  in  accordance  with  the  doctrine  already  stated.  Jones 
being  the  owner  (in  equity)  of  the  lot  attaches  to  it  the  house, 
also  his  own  property.  The  house  becomes  a  part  of  the 
realty.14  This  is  because  it  is  in  accordance  with  the  experi- 
ence of  mankind  that  when  a  man  buys  a  lot  for  a  homestead 
and  builds  a  house  upon  it  he  intends  it  to  remain  there  perma- 
nently and  therefore  his  intention  makes  it  a  part  of  the 
realty. 

But  suppose  that,  instead  of  a  contract  to  sell,  Williams 
executes  .a  lease  of  the  bare  lot  to  Jones  for  five  years,  and 
thereupon  Jones  goes  on  and  erects  a  house  upon  it,  does  it 
become  a  part  of  the  realty  so  that  Jones  is  precluded  from  re- 
moving it  during  the  five  years  of  his  term?  In  this  case, 

"Miller  vs.  Waddingham,  91  Gal.,  377;  11  L.  R.  A.,  510. 

"In  L,lfe  Ins.  Co.  vs.  Cronk:,  93  Mich.,    49. 

it  appeared  that  the  Life  Ins.  Co.'s  grantor  sold  Cronk  40  acres  of  land 
on  contract.  Cronk  went  into  possession  and  immediately  erected  on 
the  land  a  one-story  frame  dwelling,  20x26,  in  which  he  lived  for  two 
years.  He  then  defaulted  in  his  contract  and  removed  the  house  to 
another  piece  of  land.  The  Life  Ins.  Co.  brought  an  action  of  replevin 
for  the  house,  and  it  was  held  that  under  the  facts  of  the  case  the 
dwelling  was  a  part  of  the  realty,  and  having  been  wrongfully  dis- 
severed by  the  defendant,  the  plaintiff  was  entitled  to  recover. 

See  also  Kingsley  vs.  McFarland,  82  Me.,  231;  Milton  vs.  Colby,  5 
Melc.  (Mass.),  78. 


FIXTURES.  35 

both  of  the  tests  are  to  be  applied.  Applying  the  first  test,  ac- 
cording to  the  common  experience  of  mankind,  it  is  not  likely 
that  a  tenant  for  five  years  would  build  a  house  on  the  property 
demised  with  the  purpose  of  making  a  present  of  it  to  his  land- 
lord at  the  end  of  his  term.  Therefore,  if  he  merely  puts  up  a 
frame  house  on  posts,  which  may  easily  be  removed,  it  does 
not  become  a  part  of  the  realty.15  But  if,  on  the  other  hand, 
he  builds  a  brick  house  with  a  cellar  on  a  stone  foundation, 
the  solidity  and  permanence  of  the  structure  indicates  an  in- 
tention that  the  house  shall  remain  permanently,  and  conse- 
quently the  house  becomes  a  part  of  the  realty. 

The  student  must  understand  that  we  are  stating  now  in  a 
general  way  those  legal  rules  applicable  to  fixtures  in  cases 
where  there  is  no  express  agreement  binding  upon  all  the  par- 
ties interested.  In  other  words  the  rules  here  laid  down  apply 
to  cases  of  implied  contracts.  The  law  has  no  rules  which 
prevent  people  from  making  such  contracts  as  they  choose, 
either  expressly  or  impliedly,  with  regard  to  the  status  of  a 
fixture,  i.  e.,  as  to  whether  it  is  personalty  or  realty. 

WHATEVER  THE  PARTIES  AGREE  UPON  BETWEEN 
THEMSELVES  IS  BINDING.10 

For  instance,  in  the  case  first  supposed,  of  a  land  contract,  if 
there  is  an  express  agreement,  that  the  vendee  in  the  land 
contract  may  at  his  pleasure  remove  any  building  which  he 
may  erect  upon  the  premises  he  may  do  so.  In  the  second 
case,  if  it  is  agreed  that  any  building  which  the  tenants  put 
upon  the  premises  shall  remain,  this  makes  any  erection  a 

"Macdonough  vs.  Starbird,  105  Cal.,  15;  Nigro  vs.  Hatch  (Ariz.),  11 
Pac.  Rep.,  177. 

10Thus  in  the  case  of  the  Lake  Superior  Iron  Co.  vs.  McCann,  86 
Mich.,  106,  it  was  held  that  the  parties  having  agreed  that  the  property 
attached  to  the  realty  should  remain  personal  property,  the  manner  or 
permanency  of  its  annexation  was  immaterial. 

Shaw  vs.  Shaw,  59  111.  App.,  264. 


36  FIXTURES. 

part  of  the  realty  no  matter  how  loosely  or  firmly  it  is  at- 
tached.17 

Since  in  the  vast  majority  of  controversies  which  are  de- 
termined in  the  courts,  as  to  whether  a  fixture  is  real  or  per- 
sonal property,  it  is  a  matter  of  implied  contract,  it  is  not  to 
be  wondered  at  that  there  is  a  great  apparent  conflict  in  the 
decisions  of  the  courts.  The  term  implied  contract  is  used  in 
a  somewhat  broader  sense  than  it  is  frequently  used.  By  the 
term  it  is  now  intended  what  conclusion  the  courts  will  reach 
as  to  whether  a  fixture  is  personalty  or  realty  as  between  the 
parties  who  have  not  come  to  any  express  agreement  with  re- 
gard to  the  particular  matter  in  controversy.18  It  is  pecu- 

In   Handforth  vs.  Jackson   (  Mas*,  t,  22    \.   I-;..  Rep.,  634, 

it  appeared  that  Jackson  built  some  ice-houses  on  land  owned  jointly 
by  himself  and  one  Bardwell,  under  an  agreement  between  himself  and 
Bardwell  that  the  ice-houses  were  to  remain  Jackson's  individual  prop- 
erty. Jackson  and  Bardwell  leased  the  land  to  Handforth  and  in  and 
by  the  lease  sold  the  ice-houses  to  him.  Afterwards  they  deeded  the 
land  to  a  third  person,  who  took  the  deed  with  knowledge  of  the  con- 
tents of  the  lease.  Handforth,  assuming  that  the  ice-houses  were  part 
of  the  realty,  and  passed  by  the  deed  to  the  third  party,  sued  Jackson 
for  the  value  of  the  ice-houses.  And  it  was  held  that  by  the  express 
agreement  of  the  parties  the  ice-houses  were  personal  property  and  not 
part  of  the  realty,  and,  therefore,  they  did  not  pass  by  the  deed  to  the 
third  party  who  took  with  notice  of  the  agreement. 
Walker  vs.  Schmidel,  58  Md.,  360. 

'•"In  Brown  vs.  Baldwin  (Mo.),  25   V    \V  .,  Rep.,  863, 

it  appeared  that  Brown  had  erected  a  stave  factory  on  land  the  title  of 
which  was  at  the  time  in  dispute  between  Brown  and  Baldwin.  The 
value  of  the  factory  and  the  machinery  put  into  it  was  $32,000.  The 
value  of  the  land  aside  from  the  timber  on  it  did  not  exceed  $200. 
Baldwin  knew  the  factory  was  being  built  and  took  no  steps  to  prevent 
it,  but,  on  the  contrary,  said  he  wanted  it  to  progress  and  run,  and  the 
question  of  title  would  be  settled  by  him  and  Brown.  Baldwin  finally 
recovered  the  land  from  Brown  in  an  action  of  ejectment.  And,  in  a 
suit  between  the  parties  as  to  whether  the  stave  factory  was  a  part  of 
the  realty;  it  was  held,  that  it  was  not,  but  that,  under  the  circum- 
stances of  this  case,  it  remained  personal  property.  The  court  said: 
"Considering  the  fact  that  it  was  placed  there  pending  an  honest  dis- 
pute as  to  title,  with  the  acquiescence  of  Pool,  and  the  portable  char- 
acter of  such  property,  we  violate  no  rule  of  law  in  holding  that  it  was 
not  a  fixture;  and,  certainly,  none  of  the  equities  in  not  giving  Mrs. 
Baldwin  property  of  the  value  of  $30,000,  for  which  she  has  paid 
nothing,  and  whose  removal  will  not  injure  her  land." 


FIXTURES.  37 

liarly  a  rule  of  implied  contracts  that  they  are  construed  ac- 
cording to  what  are  called  "equitable"  principles.  And  by  this 
is  meant  that  instead  of  being  determined  by  rigid  and  un- 
bending rules,  every  case  is  determined  largely  in  the  light  of 
its  own  facts  according  to  the  justice  of  the  case  as  between 
the  parties.  Where  people  make  express  contracts,  and  especi- 
ally if  they  are  in  writing,  our  law  in  construing  the  contract 
does  not  usually  allow  any  enquiry  beyond  what  meaning  the 
law  had  affixed  to  the  words  used  in  the  writing  before  it  was 
executed.  Because  ordinarily  the  law  presumes  that  every 
man  knows  the  law  or,  better,  it  treats  him  as  though  he  did 
know  the  law.  But  in  cases  of  implied  contract  it  is  difficult 
to,  both,  impute  to  parties  a  contract  in  set  terms  and,  also,  to 
fix  an  exact  construction  upon  this  imputed  contract  and,  in 
this  way,  reach  what  the  law  aims  at,  justice  between  the 
parties.  Consequently,  it  results  that  in  cases  of  implied  con- 
tract there  is  a  much  greater  apparent  conflict  in  the  decisions 
of  the  courts  than  in  cases  of  express  contracts,  or  to  illus- 
trate this  thought  in  concrete  form  the  law  with  regard  to 
promissory  notes  is  vastly  more  exact  and  settled  than  the 
law  writh  regard  to  fixtures. 

Upon  a  full  consideration  of  the  subject  it  appears  that  the 
general  principles  which  we  have  stated  are  rather  rules  of 
evidence  than  unbending  rules  of  law.  In  other  words,  in  every 
case  in  which  a  dispute  arises  as  to  whether  a  fixture  is  real, 
or  personal  property,  the  question  is  more  a  question  of  fact 
than  a  question  of  law.19  Taking  this  to  be  the  correct  view  of 

i»In  Allen  vs.  Mooney,  ISO  Mass.,  155. 

it  appeared  that  Allen  was  executor  of  the  will  of  one  Saunders  and  that 
Saunders  held  two  mortgages  on  a  dwelling  house  owned  by  one  Dud- 
ley. After  the  execution  of  the  mortgages,  Dudley  bought  of  Mooney 
on  credit  a  portable  furnace  with  the  usual  pipes  and  registers,  and  it 
was  put  into  the  dwelling  house.  Dudley  did  not  pay  for  the  furnace 
and  while  he  remained  in  possession  he  permitted  Mooney  to  take  away 


38  FIXTURES. 

the  law,  it  helps  us  to  see  that  what  is  said  by  many  courts 
and  authors  to  be  the  irreconcilable  conflict  in  the  decisions 
as  to  fixtures  is  rather  apparent  than  real,  since,  generally, 
every  case  must  be  decided  in  the  light  of  its  own  facts. 

It  is  a  disputed  question  whether  the  rolling  stock  of  a  rail- 
way is  to  be  regarded  as  personal  or  real  property.  In  many 
states  the  question  is  determined  by  a  statute  or  by  a  con- 
stitutional provision.  In  the  greater  number  of  the  states  roll- 
ing stock  is  personal  property. 

In  formulating  the  rule  as  to  fixtures  annexed  by  a  tenant 
for  years,  it  was  said  that  such  fixtures  are  regarded  as  per- 
sonalty, that  is,  they  remain  the  personal  property  of  the  ten- 
ant and  do  not  become  a  part  of  the  realty  and  thus  the  prop- 
erty of  the  landlord.  But  this  general  principle  is  subject  to 
this  qualification: 

IF  A  TENANT  DOES  NOT  BEMOVE  HIS  FIXTURES  DUR- 
ING HIS  TERM,  THIS  INDICATES  THAT  HE  ANNEXED  THEM, 
OR  HAS  ABANDONED  THEM,  WITH  THE  INTENT  THAT 
THEY  SHOULD  BECOME  A  PART  OF  THE  REALTY  AND  HE 
CANNOT  AFTERWARDS  CLAIM  THEM  AS  HIS  PROPERTY.20 

This  rule,  like  other  general  rules,  has  its  natural  and  rea- 
sonable exceptions.  If  the  tenant  is  prevented  from  removing 
them  during  his  term  by  the  wrongful  conduct  of  the  landlord 


the  furnace  aud  some  of  the  pipes  and  registers.  Allen,  as  exe^'tnr. 
sued  Mooney  for  the  conversion  of  the  furnace  and  the  pipes  and  reg- 
isters which  he  took  away.  The  case  was  tried  before  a  judge  without 
a  jury.  The  judge  found  that  the  furnace  was  personal  property  and 
never  became  a  part  of  the  realty.  Upon  a  review  of  the  case  in  the  Su- 
preme Court  it  was  held  that  the  matter  in  dispute  was  so  far  a  question 
of  fact  that  the  decision  of  the  circuit  judge  could  not  be  reviewed  by 
the  Supreme  Court.  The  same  doctrine  was  maintained  in  Turner  vs. 
Wentworth,  119  Mass.,  459,  in  which  case  the  judge  in  the  court  below 
found  that  the  portable  furnaces  had  become  a  part  of  the  realty. 

Pea  vs.  Pea,  35  Ind.,  387;  Voorhees  vs.  McGinnis,  48  N.  Y.,  278; 
Campbell  vs.  O'Neill,  64  Pa.  St.,  290;  Ambs  vs.  Hill,  10  Mo.  App.,  108. 

'"Fuller  vs.  Brownell  (Neb.),  67  N.  W.  Rep.,  6. 


FIXTURES.  39 

the  rule  has  no  application.  If  the  rule  applied  in  such  a  case, 
the  landlord  would  be  allowed  to  profit  by  his  own  wrongful 
conduct,  a  thing  which  our  law  never  permits.  And,  also,  the 
rule  only  applies  where  the  tenant's  term  expires  at  a  fixed 
time.  If  the  expiration  depends  upon  a  contingency,  the  ten- 
ant is  allowed  a  reasonable  time  after  the  expiration  of  the 
term  in  which  to  remove  the  fixture.21 

"Wittenmeyer  vs.  Board  of  Education,  10  Ohio  Cir.  Ct.  Rep.,  119. 


PART  II. 

CHAPTER  I. 

ESTATES. 

Since  real  property  is  essentially  so  much  space  measuring 
from  the  center  of  the  earth  upward,  which  can  be  made  avail- 
able for  the  uses  of  and  subjected  to  the  exclusive  dominion 
of  the  individual  man,  it  is  in  its  nature  immovable  and  inde- 
structible. There  can  be  no  ownership,  and  therefore  no  prop- 
erty, in  that  which  cannot  be  subjected  to  the  exclusive  con- 
trol of  an  individual.  Therefore,  for  example,  there  is  no  prop- 
erty in  the  oceans,  for  space  in  them  cannot  be  enclosed,  nor 
can  visible  boundaries  be  established.  This  is  analogous  to 
the  doctrine  of  ou^  law,  that  there  is  no  property  in  wild  ani- 
mals, ferae  naturae,  because  they  are  not  subject  to  the  ex- 
clusive dominion  of  an  individual. 

Bearing  in  mind  the  imperishability  of  real  property,  and 
remembering  that  man  is  mortal,  it  is  evident  that  there  must 
be  frequent  changes  in  the  ownership  of  land.  It  would 
naturally  be  expected  that  in  many  cases  different  individuals 
would  have  different  interests  in  land  at  the  same  time,  and 
this  we  find  to  be  true.  One  person  may  own  it  for  a  term 
of  years,  another  for  his  life,  his  right  to  the  enjoyment  of  it 
being  postponed  until  the  expiration  of  the  term  of  years,  and 

40 


ESTATES.  41 

still  another  may  own  it  perpetually,  his  right  to  the  enjoy- 
ment of  it  being  postponed  until  the  death  of  the  one  who  has 
a  right  to  the  enjoyment  of  it  during  his  life.  There  is  nothing 
to  prevent  these  three  ownerships  or  interests  subsisting  at  the 
same  time,  for,  when  one  interest  expires,  it  is  certain  that  the 
land  will  be  there,  ready  for  the  next  taker.  But,  in  the  case 
of  personal  property  which  is  both  movable  and  perishable, 
if  such  interests  existed,  there  could  be  no  certainty  that  when 
one  right  expired  there  would  be  anything  left  for  the  one  next 
in  succession.  This  is  one  reason  why  the  principles  which  will 
be  treated  under  the  head  of  estates  are  peculiar  to  the  law  of 
real  property. 

Again,  considering  the  uncertainty  of  human  life,  it  often 
occurs  in  such  a  case  as  we  have  suggested  for  the  purpose 
of  illustration,  that,  when  the  right  of  the  first  or  second  in 
order  of  succession  to  the  enjoyment  of  the  real  property  has 
expired,  the  next  taker  is  dead.  Such  a  contingency  may  have 
been  provided  for,  and,  that  in  such  a  case,  a  different  person 
shall  take  the  place  of  the  deceased  in  the  order  of  succession. 
The  right  of  this  last  named  in  such  a  case  depends  on  which  of 
two  future  events  shall  happen  first,  i.  e.,  whether  the  term  or 
the  person  next  in  succession  shall  expire  first.  The  value  of 
the  provision  made  for  this  last  person  depends  therefore  on 
an  uncertainty  or  contingency,  and  so  it  is  called  a  contingent 
interest. 

Many  other  situations  might  be  stated  which  would  still 
further  illustrate  the  various  natures  of  interests  in  real 
property,  but,  as  these  must  all  be  discussed  and  explained 
under  their  separate  classifications,  it  is  conceived  that  enough 
has  been  said  to  enable  the  student  to  understand  the  definition 
of  the  word  "estate." 


42  ESTATES. 

IN  THE  LAW  OF  REAL  PROPERTY,  THE  WORD  "ESTATE" 
IS  USED  TO  DENOTE  THE  QUANTITY  AND  QUALITY  OF  AN 
INTEREST  IN  REAL  PROPERTY.1 

In  this  definition,  the  word  "quantity"  is  equivalent  to  du- 
ration, i.  e.,  whether  the  right  or  interest  is  for  years,  or  for 
life,  or  perpetual.  The  word  "quality"  calls  especial  attention 
to  the  question  whether  the  interest  is  contingent,  as  this  has 
been  explained,  or  vested,  which  is  the  opposite  and  correlative 
of  contingent,  and,  in  the  case  of  a  vested  estate,  whether  it  is 
absolute  or  conditional. 

In  taking  up  the  subject  of  estates  we  will  consider  first 
the  quantity,  second,  the  quality  of  estates.  The  latter  division 
we  will  discuss  under  the  following  heads  (a)  Time  of  enjoy- 
ment of  estates,  (b)  Number  and  relation  of  tenants,  (c)  Manner 
of  enjoyment,  (d)  Equitable  estates. 

Before  taking  up  the  discussion  of  the  particular  estates, 
it  may  be  well  to  briefly  call  the  student's  attention  to  the 
system  out  of  which  our  law  of  real  property  springs. 

THE  FEUDAL  SYSTEM. 

Our  real  estate  law  is  derived  from  the  common  law  of 
England,  which,  in  turn,  is  founded  on  the  feudal  law,  that  iron 
system  which  attained  its  vigor  and  probably  had  its  birth  in 
the  days  when  the  Koman  Empire  tottered  and  fell  beneath  the 
attacks  of  the  western  invaders.  Originally  all  land  was  allo- 
dial— that  is,  the  possessor  had  absolute  dominion  over  it,  not 
recognizing  any  superior  to  whom  duties  or  services  were  due 
in  connection  with  it.  He  might  transfer  the  land  by  gift,  sale 


'In  Robertson  vs.  Vancleave,  129  Ind.,  217;  15  L.  R.  A.,  68,  the  court 
defines  an  estate  as  follows: 

"An  estate  in  land  is  the  degree,  quantity,  nature  or  extent 
of  interest  which  a  person  has  in  it." 


ESTATES.  43 

or  devise;  it  was  liable  to  be  taken  for  the  satisfaction  of  his 
debts,  and  on  his  death  was  divided  among  his  heirs.  But 
this  simple  and  natural  method  was  completely  reversed  under 
the  feudal  system.  As  the  invading  tribes  moved  westward, 
all  the  land  in  their  newly  acquired  territory  was  appropriated 
by  the  king  or  military  chieftain*  who  parcelled  it  out  among 
his  followers  as  a  reward  for  their  services  in  war.  He  who 
thus  granted  the  land  was  called  the  lord,  and  the  recipients 
his  vassals  or  tenants.  Those  who  received  their  lands  directly 
from  the  chief  lord  might  in  turn  allot  it  among  their  own 
followers,  who  then  became  vassals  to  their  immediate  donor, 
while  the  latter  assumed  as  to  them  the  relation  of  lord.  In 
return  for  the  use  of  the  land  and  the  lord's  protection,  the 
tenant  was  required  to  follow  him  in  his  wars  and  to  take  an 
oath  of  fealty  to  him,  swearing  to  faithfully  defend  his  lands, 
his  title  and  his  person.  Upon  taking  possession  of  the  land, 
he  was  further  required  to  do  homage  to  the  lord,  which  con- 
sisted in  "openly  and  humbly  kneeling,  being  ungirt,  uncovered 
and  holding  up  his  hands  both  together  between  those  of  the 
lord,  who  sat  before  him,  and  there  saying:  'I  do  become  your 
man  from  this  day  forth,  of  life  and  limb  and  earthly  worship, 
and  unto  you  will  be  true  and  faithful  and  bear  your  faith  for 
the  tenements  that  I  claim  to  hold  of  you,  saving  the  faith  that 
I  owe  to  our  sovereign  lord  the  king,'  and  then  he  received  a 
kiss  from  his  lord."  At  first  the  land  was  held  strictly  at  the 
will  of  the  lord  who  might  at  any  time  forfeit  the  vassal's 
estate  if  he  considered  that  his  services  were  not  faithfully 
performed.  The  only  security  the  tenant  had  was  the  con- 
science and  honor  of  the  lord — a  very  precarious  one  in  many 
cases.  Gradually,  however,  lands  came  to  be  granted  for  one 
or  more  years,  and  then  for  the  life  of  the  feudatory.  Fre- 
quently, by  the  favor  of  the  lord,  they  were  renewed  to  the 


44  ESTATES. 

sons  of  the  former  possessor,  and  so  by  degrees  feuds  at  last 
became  hereditary.  The  feudatory,  however,  could  not  alien 
nor  devise  his  estate  without  the  consent  of  the  lord. 

Such  is  an  outline  of  the  system  which  existed,  with  slight 
variations,  among  all  the  Teutonic  tribes  and  which  was 
established  in  England  in  all  its  rigor  by  William  the  Con- 
queror. There  are,  it  is  true,  traces  of  a  feudal  tenure  among 
the  Saxons,  but  if  it  existed  at  all  it  was  in  a  very  imperfect 
form.  The  system  was  essentially  military  and  was  well  cal- 
culated to  preserve  by  force  what  had  been  forcibly  acquired, 
as  was  proven  by  the  tenacity  with  which  these  tribes  retained 
their  conquests;  but  as  conditions  changed  and  a  more  settled 
mode  of  life  began  to  prevail,  many  of  its  features  became 
inapplicable  to  the  new  state  of  affairs,  and  this  and  the  abuses 
grafted  upon  it  by  the  subtleties  of  the  Norman  lawyers  con- 
verted it  into  a  terrible  engine  of  oppression.  Thus,  it  became 
a  principle  of  law  that  all  lands  were  held  mediately  or  imme- 
diately of  the  king,  while  the  tenant  was  entitled  only  to  the 
present  enjoyment;  that  if,  therefore,  upon  the  tenant's  death, 
the  heir  wished  a  continuance  of  the  king's  favor,  it  was  only 
reasonable  that  he  should  pay  for  the  privilege  of  succeeding 
to  the  estate.  It  was  also  held  that  the  lord  was  entitled  to 
have  a  tenant  upon  the  land  who  could  render  service  as  a 
soldier,  and  that  if  the  heir  was  incapable,  by  reason  of  his 
yonth,  of  rendering  such  service,  the  lord  should  have  the  use 
of  the  land  during  his  minority,  to  defray  the  cost  of  providing 
a  sufficient  substitute;  or,  if  the  heir  was  a  woman,  that  the 
lord  should  have  the  disposal  of  her  hand  in  marriage.  The 
tenant  was  also  required  to  furnish  sums  of  money  (aids)  to  the 
lord  upon  certain  emergencies,  as  when  the  lord  was  taken 
prisoner,  when  he  made  his  son  a  knight  or  when  his  daughter 
was  married. 


ESTATES.  45 

Absolute  restraint  from  alienation  was  one  of  the  most 
striking  characteristics  of  the  feudal  system.  But  such  a  rule, 
contrary  to  the  very  nature  of  property,  was  bound  to  yield 
to  the  Anglo-Saxon  love  of  independence.  Its  first  mitigation 
was  the  power  of  alienation  when  the  lord  consented.  Then 
followed  successively  the  right  to  alien  when  the  tenant  took 
by  purchase  and  not  by  descent,  and  when  the  grant  was  to  him 
and  his  assigns.  By  the  time  of  Edward  I.,  the  restriction 
had  virtually  disappeared  through  the  practice  of  subinfeuda- 
tion  and  the  enactment  of  the  statute  Quia  Emptores,  and  in 
1660  the  last  vestige  of  restraint,  fines  upon  alienation,  were 
formally  abolished  by  the  statute  12  Car.  Ch.,  24. 

The  services  required  of  the  tenant  for  the  use  of  the  land 
were  of  two  kinds — free  service  and  base  service.  Free  services 
were  such  as  it  was  considered  not  unbecoming  a  freeman  to 
perform — for  instance,  to  follow  the  lord  in  his  wars.  Base 
services  were  such  as  became  only  peasants  or  persons  of  low 
rank,  such  as  ploughing  the  lord's  fields.  Services  might  also 
be  certain,  such  as  the  payment  of  an  annual  rent,  or  uncertain, 
such  as  military  duty.  When  the  service  was  free  and  certain 
and  yet  not  military,  the  tenant  was  said  to  hold  by  free  and 
common  socage.  Originally,  where  knight  service  was  required, 
the  tenant  was  obliged  to  personally  attend  the  lord  in  his 
wars;  but  in  the  reign  of  Henry  II.,  the  practice  arose  of 
permitting  him  to  send  a  substitute  or  pay  a  sum  of  money  in 
lieu  of  personal  service,  and  this  practice  quickly  became  the 
general  rule. 

Owing  to  these  various  changes  and  the  altered  conditions 
of  society,  the  virtues  of  the  feudal  tenure  were  gradually 
eliminated,  and  only  its  evils  remained.  As  the  services  which 
the  lord  might  require  of  his  vassal  were  uncertain  in  their 
extent,  the  compensation  which  he  might  demand  in  lieu  of 


46  ESTATES. 

» 

services  was  also  uncertain  and  might  be  increased  at  his 
pleasure.  The  lord's  rights  of  relief,  aids,  wardship  and 
marriage  were  made  a  cloak  for  robbery  and  extortion.  It  is 
said  that  at  one  time  the  wealthy  heiresses  of  the  kingdom 
were  inventoried  like  the  slaves  on  a  plantation.  The  young 
heir,  after  a  long  minority,  frequently  found  his  patrimony 
wasted  and  almost  worthless  through  the  lord's  rapacity,  and 
even  then  was  obliged  to  pay  a  "relief"  for  the  privilege  of  tak- 
ing what  remained.  The  oppression  and  abuses  of  the  great 
landlords  finalhr  became  so  great  that  in  the  reign  of  Charles 
n.  tenure  by  knight  service  and  all  its  incidents  were  abolished 
and  landed  property  relieved  of  its  intolerable  burden. 

Although  no  such  tenures  exist  in  this  country  (except  in 
the  case  of  leasehold  estates),  yet  we  are  in  this  somewhat 
anomalous  position — that  while  all  land  is  allodial,  the  nomen- 
clature of  the  old  system  continues  to  be  employed,  and  its 
principles  are  still  applied  where  they  do  not  conflict  with  the 
spirit  of  our  own  jurisprudence.  When  our  ancestors  settled 
the  American  colonies  they  brought  with  them  so  much  of  the 
English  common  law  and  the  statutes  enacted  in  amendment 
thereof  as  was  applicable  to  their  new  situation  and  circum- 
stances. A  large  portion  of  the  law,  relating  to  matters 
which  were  peculiar  to  the  political  and  social  conditions  of  the 
Old  World  and  had  no  counterpart  in  the  New,  was  of  course 
inapplicable  to  the  changed  condition  of  the  colonists  and  has 
never  been  recognized  as  a  part  of  our  jurisprudence.  Notwith- 
standing this  exception,  however,  the  presumption  is  that  the 
common  law  is  the  same  here  as  it  is  in  England,  and  the 
inapplicability  of  the  latter  must  be  shown  before  it  will  be 
rejected. 


CHAPTER   II. 

FREEHOLD  ESTATES  OF  INHERITANCE. 

Estates  as  to  their  quantity  or  duration  are  divided  into 
estates  of  freehold,  and  estates  less  than  a  freehold.  Estates 
of  freehold  are  again  divided  into  freehold  estates  of  inheri- 
tance and  freehold  estates  not  of  inheritance. 

ESTATES  IN  FEE  SIMPLE. 

Formerly  the  word  "fee"  represented  an  estate  in  land  held 
of  a  superior  in  consideration  of  services  to  be  rendered.  The 
term  now  means  an  estate  of  inheritance.  When  the  word  "fee" 
is  used  without  any  qualifying  adjective,  it  means  an  estate  of 
inheritance,  free  from  conditions  or  limitations.  The  use  of  the 
words  "fee  simple"  or  "fee  absolute"  indicate  the  same  un- 
limited and  unconditioned  estate. 

AN  ESTATE  IN  FEE  SIMPLE  MAY,  THEREFORE,  BE 
DEFINED  AS  AN  ESTATE  OF  INHERITANCE,  UNLIMITED 
AND  UNCONDITIONED. 

It  is  the  greatest  estate  known  to  the  law;  for  it  entitles 
the  owner  to  hold  the  land  absolutely  and  unconditionally  to 
himself  and  his  heirs  forever;  it  permits  and  conveys  an  abso- 
lute dominion  over  the  real  property  in  so  far  as  immovable 
property  admits  of  the  same. 

The  owner  may  alienate  it  to  anyone  he  pleases;  he  may 
devise  it ;  he  may  commit  unlimited  waste  upon  it,  and  he  may 
make  any  use  of  the  land  he  pleases  not  prohibited  by  law, 
providing,  of  course,  he  does  not  invade  the  legal  rights  of  ad- 
joining owners  or  other  persons. 

47 


48  FREEHOLD  ESTATES  OF  INHERITANCE. 

THE  BIGHT  TO  ALIENATE  IS  ONE  OF  THE  ESSENTIAL 
INCIDENTS  OF  AN  ESTATE  IN  FEE  SIMPLE. 

A  grantor  cannot  create  an  estate  in  fee  simple  in  his 
grantee  and  attach  conditions  inconsistent  with  this  essential 
right  of  alienation.  Thus,  a  condition  in  a  grant  of  a  fee  which 
restrains  all  power  of  alienation  is  void,  as  inconsistent  with 
the  nature  of  the  estate  granted.  "It  is  absurd  and  repug- 
nant to  reason  that  he  that  hath  no  possibility  to  have  the 
land  revert  to  him  should  restrain  his  feoffee  in  fee  of  all  his 
power  to  alien  because  his  whole  interest  is  out  of  him,  so  he 
hath  no  possibility  of  reverter,  and  it  is  against  trade  and 
traffic  and  bargaining  and  contracting  between  man  and 
man."1 

The  effect  of  a  condition  limiting  all  power  of  alienation  for 
a  limited  period,  or  preventing  alienation  to  certain  persons, 
will  be  discussed  hereafter.2 

The  other  incidents  of  an  estate  in  fee  simple  are  as  fol- 
lows: The  right  of  dower,  curtesy  and  descent,  and  a  liability 
to  be  taken  to  satisfy  the  debts  of  the  owner.  None  of  these 
incidents  require  explanation  at  this  time. 

AN  ESTATE  IN  FEE  SIMPLE,  AT  THE  COMMON  LAW,  AROSE 
ONLY  WHEN  AN  ESTATE  WAS  CONVEYED  TO  A  GRANTEE 
AND  "TO  HIS  HEIRS"  FOREVER. 

Littleton  states  the  rule  as  follows: 

"A  tenant  in  fee  simple  is  he  who  hath  lands  or  tene- 
ments to  him  and  his  heirs  forever.  For,  if  a  man  would 
purchase  lands  or  tenements  in  fee  simple,  it  behooveth  him  to 
have  these  words  in  his  purchase,  'to  have  and  to  hold  to  him 
and  his  heirs,'  for  these  words,  'his  heirs,'  make  the  estate  of 

'Mandelbaum  vs.  McDonald,  29  Mich.,  77. 
'Truesdell  vs.  Lehman,  47  N.  J.  Eq.,  218.    • 
See  Sisson  vs.  Donnelly,  36  N.  J.  L.,  432. 
Bdwardsville  R.  R.  Co.  vs.  Sawyer,  92  111.,  377. 


FREEHOLD   ESTATES   OF   INHERITANCE.  49 

inheritance.  For,  if  a  man  purchase  an  estate  by  these  words: 
'to  have  and  to  hold  to  him  forever,'  or  by  these  words:  'to 
have  and  to  hold  to  his  assigns  forever/  in  these  two  cases  he 
hath  but  an  estate  for  life,  for  that  there  lack  these  words: 
'his  heirs,'  which  words  only  make  an  estate  of  inheritance  in 
all  feoffments  and  grants." 

To  this  common  law  rule  there  are  a  number  of  exceptions. 

I.  Where  land  is  devised,  if  it  appears  from  the  whole 
context  of  the  will  that  the  testator  intended  that  a  fee  simple 
should  pass,  a  fee  simple  will  pass.    This  rule  has  been  stated 
by  the  Supreme  Court  of  Pennsylvania  as  follows :     "In  con- 
struing a  will,  although  a  fee  is  not  given  by  the  devising 
clause,  yet,  if  there  is  anything  on  the  face  of  the  will  to  indi- 
cate an  intention  to  give  a  fee,  any  words  equivalent  to  words 
of  perpetuity,  anything  in  the  four  corners  of  the  will  from 
which  a  fair  and  demonstrable  inference  can  be  drawn  of  an 
intention  to  give  a  fee,  to  the  disherison  of  the  heir,  a  fee  will 
pass."4 

II.  A  conveyance  to  a  corporation  aggregate,  the  word 
"heirs"  need  not  be  used,  for  a  corporation  has  no  heirs.5 

III.  A  conveyance  to  a  trustee,  where  the  nature  of  the 
trust  is  such  as  to  require  a  fee,  the  trustee  will  take  an  estate 
of  inheritance,  although  the  word  "heirs"  is  not  used.6 ' 

IV.  In  the  case  of  a  division  of  real  property  between 
joint  tenants  or  tenants  in  coparceny,  if  a  release  is  made  by 
one  tenant  to  another  of  a  separate  portion,  the  latter  will  take 

'Campbell  vs.  Carson,  12  S.  &  R.   (Pa.),  54. 

See  also  Godfrey  vs.  Humphrey,  18  Pick.   (Mass.),  537. 
'Wilcox  vs.  Wheeler,  47  N.  H.,  488. 

Emerson  vs.  Mooney,  50  N.  H.,  320. 
•North  vs.  Philbrook,  34  Me.,  542. 

Ewing  vs.  Shannahan,  113  Mo.,  188. 

This  rule  does  not  extend  to  a  conveyance  by  a  tenant  in  common 
to  a  co-tenant. 


50  FREEHOLD   ESTATES   OP   INHERITANCE. 

a  like  estate  as  he  previously  had  in  common  with  the  others, 
even  though  the  word  "heirs"  is  not  used.7 

V.  In  case  of  a  legislative  grant  the  word  ''heirs"  is  not 
necessary  to  convey  an  estate  in  fee  simple.8 

VI.  Where  reference  is  made  in  a  conveyance  to  another 
deed  which  indicates  that  the  estate  conveyed  is  one  of  inherit- 
ance, the  word  "heirs"  is  not  necessary.     Thus,  where    one 
endorsed  on  a  deed  that  he  conveyed  his  right,  title  and  in- 
terest in  and  to  "the  within  deed"  it  was  held  that  the  word 
"heirs"  used  in  the  deed  referred  to,  became  a  part  of  the  con- 
veyance and  that  an  estate  in  fee  simple  was  conveyed." 

The  rule  requiring  use  of  the  word  "heirs"  the  student  will 
understand  is  the  common  law  doctrine,  the  reason  for  which 
grew  out  of  the  feudal  system.  Under  that  system  a  grant 
was  made  in  consideration  of  services  to  be  rendered  by  the 
grantee,  and,  inasmuch  as  the  services  were  of  a  personal 
nature,  in  which  the  skill  and  ability  of  different  persons  might 
vary,  the  grant  as  understood  to  be  limited  to  the  life  of  the 
grantee,  unless  it  was  expressly  agreed  that  it  should  go  to 
his  heirs.10 

The  reason  of  this  rule  has  ceased,  and  it  has  been  generally 
abrogated  by  statute.  In  some  States  the  rule  has  not  been 
recognized  as  part  of  the  common  law.11 

The  student  will  get  an  idea  of  the  legislation  on  this  sub- 
ject from  the  New  York  statute,  which  has  been  followed  by 
the  legislatures  of  many  States.  It  reads  as  follows:  "The 

'Rector  vs.  Waugh,  17  Mo.,  13. 

"Jackson  vs.  Housell,  17  John.,  281. 
Proprietors,  etc.,  vs.  Permit,  5  N.  H.,  280. 

•Lemon  vs.  Graham,  131  Pa.  St.,  447. 

102  Blk.  Com.,  108. 

u"This  rule  which  would  destroy  the  plainly  expressed  contract  of 
the  parties  in  the  present  case,  is  not  adapted  to  our  institution  or  to 
the  condition  of  things  in  this  State,  and  it  never  became  a  part  of  the 
law  in  this  State."  Coll  vs.  Lake  Co.,  54  N.  HM  242. 


FREEHOLD   ESTATES   OF   INHERITANCE.  51 

term  'heirs'  or  other  words  of  inheritance  shall  not  be  requisite 
to  create  or  convey  an  estate  in  fee,  and  every  grant  or  devise 
of  real  estate  or  any  interest  therein  hereafter  to  be  executed 
shall  pass  all  the  estate  of  the  grantor  and  testator,  unless  the 
intent  to  pass  a  less  estate  or  interest  shall  appear  by  express 
terms  or  be  necessarily  implied  in  the  terms  of  the  grant." 

Under  the  common  law  rule,  unless  the  word  "heirs"  was 
used,  a  life  estate  only  passed;  under  the  statutory  rule  as 
enacted  in  many  States,  an  estate  in  fee  passes  where  the 
grantor  is  seized  of  it,  unless  the  contrary  appears. 

In  some  of  the  States  the  use  of  the  word  "heirs"  is  only 
done  away  with  in  wills.  The  student  ought  to  consult  the 
statutes  of  his  own  State  on  this  subject. 

ESTATES  IN  FEE  TAIL. 

it 

At  the  common  law,  it  early  became  a  practice  on  the  part 
of  the  grantors  (who,  as  a  rule,  were  the  nobles  and  the  great 
landlords),  to  attach  conditions  to  their  grants,  for  the  purpose 
of  retaining  the  title  to  the  land  in  the  family  of  the  grantor  or 
his  heirs,  by  restricting  an  alienation  by  the  grantee.  These 
conditions  usually  provided  that  if  the  grantee  died  without 
particular  heirs,  the  estate  should  revert  to  the  grantor.  Thus, 
an  estate  was  granted  to  a  man  and  the  heirs  of  his  body;  in 
which  case  if  one  died  without  direct  (lineal)  descendants,  the 
estate  reverted  to  the  grantor,  even  though  he  might  have 
collateral  heirs,  as  his  sisters  or  brothers. 

So,  an  estate  was  sometimes  granted  to  a  man  and  the 
heirs  male  of  his  body,  which  excluded  from  the  succession 
both  the  collateral  heirs  and  lineal  female  heirs,  and  the  estate 
reverted  to  the  grantor  if  there  were  no  lineal  male  heirs. 
These  estates  at  the  common  law  were  called  conditional  fees. 


52  FREEHOLD   ESTATES   OF   INHERITANCE. 

A  CONDITIONAL  FEE  AT  THE  COMMON  LAW  IS  AN 
ESTATE  OF  INHERITANCE  LIMITED  TO  PARTICULAR  HEIRS 
OF  THE  DONEE.12 

The  courts  have  always  looked  with  jealousy  upon  re- 
straints upon  alienation,  and  we  find  this  tendency  manifested 
in  the  decisions  of  the  early  judges.  By  a  subtlety  the  judges 
were  able  to  overcome  the  restraint  on  alienation  which  it 
evidently  was  the  intention  of  the  donor  to  impose.13  They 
ruled  that  a  grant  of  land  with  the  condition  already  stated, 
created  an  estate  in  fee  simple  on  condition  that  the  grantee 
had  certain  heirs,  and  that  upon  the  birth  of  an  heir  of  the 
class  limited,  the  condition  was  performed  and  the  estate  for 
the  purpose  of  alienation  became  absolute  and  unconditional, 
and  that  the  grantee,  on  the  birth  of  the  heir  of  the  kind  lim- 
ited, might  alien  the  land  and  cut  off  the  donor's  possibility 
of  reversion.  If  the  grantee  did  not  convey  the  land  on  the 
birth  of  the  issue,  and  afterdards  died  without  leaving  any 
issue  of  the  kind  limited,  the  estate  would  then  revert  to  the 
donor.  As  a  rule,  the  grantee  of  the  estate  took  the  first  op- 
portunity he  had  to  alien  and,  by  conveying  the  land  to  a  third 
person  and  taking  a  re-conveyance  back  to  himself,  acquire  a 
title  to  the  property  in  fee  simple. 

The  barons  and  landlords  in  the  reign  bf  Edward  I.,  for  the 
purpose  of  preventing  such  alienation  by  the  donee,  procured 
the  passage  by  parliament,  of  an  act  which  provided  that  the 
donee  could  not  disinherit  his  issue  contrary  to  the  intent  of 
the  donor,  and  that  the  estate  should  remain  after  the  death 
of  the  donee  to  his  issue,  or  to  the  donors  if  the  grantees  or 

1=4  Kent's  Co.,  11. 

"Lord  Mansfield,  in  speaking  of  these  decisions,  says:  "It  was 
by  subtlety  in  odium  of  perpetuity  and  for  the  special  purpose  of  alien- 
ation but  for  no  other." 

Duckworth  vs.  Thirkell,  3  B.  &  P.,  652n. 


FREEHOLD   ESTATES   OF   INHERITANCE.  53 

his  heirs  failed  in  the  issue  of  the  kind  limited.  This  statute 
is  known  as  "De  Donis  Conditionalibus."  Under  it  and  the  de- 
cisions construing  it,  the  donee  no  longer  took  a  conditional 
fee  simple,  but  an  interest  which  became  known  as  fee-tail. 
This  interest  the  donee  had  no  right  to  alienate,  and  it  de- 
scended to  his  heirs  in  the  manner  limited  by  the  grantee. 

AN  ESTATE  IN  FEE  TAIL,  IS  AN  ESTATE  OF  INHER- 
ITANCE ARISING  UNDER  THE  STATUTE  DE  DONIS,  WHICH 
IS  SO  LIMITED  THAT  IT  MUST  DESCEND  TO  CERTAIN  HEIRS 
OF  THE  GRANTEE,  SO  LONG  AS  THEY  CONTINUE,  AND 
WHICH,  ON  THE  FAILURE  OF  SUCH  HEIRS,  REVERTS  TO 
THE  DONOR  OR  HIS  HEIRS. 

Under  this  statute  the  conditional  fee  was  cut  in  two,  and 
the  donee  took  an  estate  in  possession  and  the  donor  retained 
an  estate  in  reversion  which  he  might  grant  to  another. 

The  effect  of  this  statute  was  to  stop  all  alienation  of  con- 
ditional fees.  Its  results  were  soon  felt;  the  parent  was  unable 
to  cut  off  his  children  and  they  became  independent;  creditors 
were  unable  to  take  the  land  for  debt,  and  titles  became  inse- 
cure by  reason  of  hidden  entails  wrhich  defeated  the  purchaser 
of  the  property  purchased.  The  people  were  unable  to  secure 
relief  from  this  evil  system  from  parliament,  because  it  was 
dominated  by  the  landlords  and  nobility.  Relief  finally  came 
from  the  courts,  which  again  by  subtleties  enabled  the  tenant 
to  bar  the  entail. 

This  was  done  in  two  ways;  by  fines  and  by  common  re- 
coveries. Estates  tail  have  been  so  generally  abolished  that  in 
a  book  of  this  size  it  is  not  expedient  to  discuss  at  any  length 
the  incidents  and  nature  of  this  estate;  but  for  the  purpose  of 
familiarizing  the  student  with  terms  which  he  will  sometimes 
meet,  we  call  his  attention  to  the  subdivision  of  estate  tail. 

Estates  tail  are  of  two  kinds;  general  and  special.  A 
tenancy  in  tail  general  is  created  where  land  is  given  to  a  man 


54  FREEHOLD   ESTATES   OF   INHERITANCE. 

and  the  heirs  of  his  body  without  any  other  limitation,  in 
which  event  his  issue  in  general  by  any  wife  will  inherit.  A 
tenant  in  tail  special  is  where  land  is  given  to  a  man  and  to 
certain  heirs  of  his  body,  to  exclusion  of  other  general  heirs. 

Thus,  an  estate  in  tail  special  was  created  when  land  was 
given  to  a  man  and  the  male  heirs  of  his  body  (called  an  estate 
in  tail  male)  or  to  the  heirs  female  of  his  body  (called  an  estate 
tail  female)  or  where  it  was  restricted  to  his  issue  by  his 
present  wife.  After  the  possibility  of  issue  ceased,  the  tenant 
in  tail  had  a  life  estate  and  was  called  a  tenant  in  tail  after 
possibility  of  issue  extinct. 

In  the  colonial  times  estates  tail  existed  in  this  country. 
On  the  principle  already  stated  that  the  law  abhors  a  per- 
petuity, they  have  been  abolished  in  nearly  all  the  States.  In 
some  states  the  statute  de  donis  is  not  recognized  as  a  part  of 
the  common  law.  In  many  States  where  the  estate  is  abolished 
by  statute,  it  i»  provided  that  a  grant  of  land  with  conditions 
which  would  formerly  create  an  estate  tail,  now  passes  an 
estate  in  fee  simple.14  In  other  States,  the  donee  under  such 
circumstances  takes  a  life  estate  with  remainder  in  fee  to  the 
persons  limited  in  the  grant.15  In  a  few  states  where  the 
estate  exists,  it  can  be  easily  barred;  for  instance,  in  Massa- 
chusetts, it  may  be  barred  by  a  deed.16 

"Wheatly  vs.  Barker,  79  Ga.,  790. 
"Lehndorf  vs.  Cape,  122  111.,  317. 

Wheart  vs.  Cruser,  49  N.  J.  L..,  475. 
"Coombs  vs.  Anderson,  138  Mass.,  376. 


CHAPTER  III. 

FREEHOLD  ESTATES  NOT  OF  INHERITANCE. 

LIFE  ESTATES. 

A  LIFE  ESTATE  IS  AN  ESTATE  WHICH  IS  LIMITED  IN 
ITS  DURATION  TO  THE  LIFE  OF  THE  TENANT  OB  OF  SOME 
THIRD  PERSON  OR  PERSONS,  OR  AN  ESTATE  WHICH  MAY 
ENDURE  FOR  LIFE,  BUT  WHICH  MAY  BE  DETERMINED 
EARLIER  BY  THE  HAPPENING  OR  NON-HAPPENING  OF  AN 
UNCERTAIN  EVENT. 

Life  estates  are  of  two  kinds, — conventional  and  legal. 
Conventional  life  estates  are  created  by  the  acts  of  the  parties; 
legal  life  estates  are  those  created  by  operation  of  law.  The 
latter  estates  are  estates  during  coverture,  curtesy,  dower, 
estates  tail  after  possibility  of  issue  extinct,  and  homestead. 
CONVENTIONAL  LIFE  ESTATES. 

Conventional  life  estates  are  of  three  kinds, — estates  for 
the  life  of  the  grantor,  estates  for  the  life  of  the  tenant,  and 
estates  for  the  life  of  some  third  person  or  persons.  Estates 
of  the  last  kind  may  be  for  the  life  of  some  single  third 
person,  or  for  the  joint  lives  of  a  number  of  persons,  or  for  the 
life  of  one  of  a  number  of  persons  who  lives  the  longest.  Where 
the  tenant  holds  the  property  for  his  own  life,  he  is  called  a 
tenant  for  life;  where  he  holds  for  the  life  of  some  third  per- 
son, he  is  called  a  tenant  pur  autre  vie;  and  the  person  on 
whose  life  the  estate  is  limited  is  called  the  cestui  qui  vie. 

An  estate  for  the  life  of  the  tenant  terminates  on  his  death; 
an  estate  pur  autre  vie  does  not  terminate  on  the  death  of  the 
tenant,  but  on  the  death  of  the  person  upon  whose  life  it  is 

55 


56  FREEHOLD   ESTATES   OP   INHERITANCE. 

limited,  which  may  be  before  or  after  the  death  of  the  tenant. 
When  the  estate  is  for  the  joint  lives  of  two  or  more  persons, 
it  terminates  on  the  first  death  of  one  of  the  designated  per- 
sons, but  if  the  estate  is  created  to  endure  during  the  lives  of 
persons  named  and  their  survivor  it  continues  until  the  death 
of  the  last  one. 

At  the  common  law7,  if  the  tenant  for  the  life  of  another 
died  before  the  cestui  qui  vie,  the  estate  continued,  but  it  did 
not  descend  to  the  heirs,  for  it  was  not  an  estate  of  inherit- 
ance. The  interest  of  the  deceased  could  be  taken  by  the  one 
who  first  took  possession,  and  he  was  called  a  general  occupant. 

Statutes  were  subsequently  passed  in  England  enabling  the 
heirs  to  enjoy  the  balance  of  the  life  estate  as  special  occu- 
pants. In  this  country,  as  a  general  rule,  the  statutes  provide 
that  if  the  tenant  for  the  life  of  another  dies  before  the  cestui 
qui  vie,  the  interest  of  the  deceased  passes  to  the  administra- 
tor, the  same  as  the  other  personal  property;  in  other  States, 
the  statutes  provide  that  such  an  interest  descends  to  the  heirs. 

The  foregoing  statement  is  made  on  the  supposition  that 
the  tenant  did  not  devise  his  interest  in  the  land;  for,  in  all 
States,  the  tenant  pur  autre  vie  may  dispose  of  his-  interest 
by  will.  So,  if  the  tenant  pur  autre  vie  conveys  the  property, 
his  grantee  will  hold  the  property  until  the  death  of  the  cestui 
qui  vie,  and  unaffected  by  the  death  of  his  grantor. 

Conventional  life  estates,  as  indicated  by  the  word  "conven- 
tional," arise  only  out  of  the  agreement  of  the  parties,  and  can 
only  be  created  by  a  deed  or  devise. 

At  the  common  law,  no  particular  words  were  necessary  to 
create  a  life  estate ;  for,  as  we  have  seen,  the  grant  of  an  estate 
without  the  use  of  the  word  "heirs"  created  a  life  estate. 

In  a  number  of  States,  as  has  been  stated,  the  common  law 
rule  is  changed,  and  a  grantee  in  a  deed  which  does  not  contain 


FREEHOLD   ESTATES   OF   INHERITANCE.  57 

the  word  "heirs"  takes  the  entire  interest  of  his  grantor,  unless 
the  grant  is  limited.  In  these  States,  therefore,  if  it  is  in- 
tended to  create  a  life  estate  by  a  grantor  having  an  estate 
greater  than  a  life  estate,  the  grant  should  be  expressly  limited 
to  the  life  of  the  grantee  or  of  some  other  person  or  persons, 
as  desired. 

In  a  number  of  instances,  it  has  been  held  that  a  life  estate 
may  arise  by  implication.  Thus,  where  land  was  devised  to 
the  heirs  of  the  testator  after  the  death  of  B,  it  was  held  that 
B  took  a  life  estate  by  implication.1 

A  life  estate  may  also  arise  where  one  having  a  freehold 
estate  of  inheritance  conveys  it  to  another  subject  to  a  life 
estate  in  the  grantor  or  some  other  person. 

Originally,  the  term  ''life  estates"  included  only  those  es- 
tates which  were  for  the  life  of  a  certain  designated  person  or 
persons,  but  it  has  been  extended  to  include  those  estates 
which  may  continue  for  life,  but  the  duration  of  which  is  un- 
certain. Thus,  a  grant  of  land  to  a  woman,  to  be  held  by  her 
"as  long  as  she  shall  remain  a  widow"  was  held  to  create  a  life 
estate.  So,  a  grant  of  land,  to  be  held  by  the  grantee  as  long 
as  he  should  use  it  for  a  certain  purpose,  or  until  he  can,  out  of 
the  rents  or  profits,  pay  off  the  debt  of  the  grantor,  will  create 
a  life,  and,  therefore,  a  freehold,  estate2. 

The  rights  and  liabilities  of  a  conventional  life  tenant  are 
as  a  general  rule  the  same  as  a  life  tenant  whose  estate  arises 
by  operation  of  law.  We  will,  therefore,  after  briefly  dis- 
cussing the  legal  life  estates,  discuss  the  general  rights  and 
liabilities  of  all  life  tenants. 


'Barry  vs.  Shelby,  4  Hayn   (Tenn.),  229. 
2Hurd  vs.  Gushing,  7  Pick.,  179. 


58  FREEHOLD   ESTATES   OF   INHERITANCE. 

LEGAL  LIFE  ESTATES. 

All  of  the  legal  life  estates,  with  possibly  one  exception, 
arise  out  of  the  marital  relation.  In  view  of  this  fact,  it  may 
be  well  to  briefly  discuss  the  effect  of  marriage  on  the  property 
rights  of  the  husband  and  wife  at  the  common  law. 

While  it  is  true  that  the  common  law  rules,  imposing  disa- 
bilities on  married  women  and  conferring  rights  on  the  hus- 
band have  been  generally  abolished,  or  so  limited  as  to  be  of 
little  force,  yet  the  student  ought  to  have  clear  understanding 
of  the  common  law  doctrine  in  order  that  he  may  be  able  to 
understand  the  purpose  of,  and  determine  the  extent  and  scope 
of  the  statutes  relating  to  this  subject. 

In  many  of  the  States,  for  instance,  the  statutes  do  not  en- 
able the  wife  to  make  all  contracts;  but  the  common  law  disa- 
bility has  only  been  removed,  to  the  extent  that  she  may  make 
contracts  with  reference  to  her  separate  property.  Under  such 
statutes,  the  wife's  capability  to  contract  in  matters  not  relat- 
ing to  her  separate  property,  must  be  determined  and  con- 
trolled by  the  common  law. 

It  was  one  of  the  fictions  of  the  common  law,  that  by  mar- 
riage the  husband  and  wife  became  a  legal  unit ;  the  legal  exis- 
tence of  the  wife  became  merged  in  the  husband;  she  took  his 
name  and  became  civilly  dead.  From  this  fiction  sprang  all 
the  disabilities  of  a  married  woman.  She  became  incapable 
of  making  a  valid  contract  and  could  not  sue  or  be  sued  in  her 
own  name. 

The  common  law  not  only  imposed  disabilities  on  the  wife, 
but,  as  a  result  of  its  doctrines,  the  marriage  operated  as  a  gift 
to  the  husband  of  much  of  the  wife's  property.  The  husband 
became  the  absolute  owner  of  that  part  of  his  wife's  personal 
property,  which  was  reduced  to  possession  during  coverture 
and  became  the  absolute  owner  of  her  chattels  real,  such  as 


FREEHOLD   ESTATES   OF   INHERITANCE.  59 

estates  for  years,  etc.,  and  as  such  absolute  owner  might  mort- 
gage or  sell  them  as  he  pleased.  If,  however,  the  husband 
died  without  disposing  of  the  wife's  chattels  real,  they  again 
belonged  to  the  wife. 

In  the  land  of  which  the  wife  was  seised  of  a  freehold 
estate,  the  husband  became  seised  jointly  with  the  wife  of  a 
freehold  estate,  in  her  right,3  and,  by  virtue  of  his  estate,  be- 
came entitled  to  the  rents  and  profits  and  could  use  and 
occupy  the  land  during  coverture. 

The  husband's  right  in  land  of  which  the  wife  was  seised 
of  a  freehold,  continued  only  during  coverture.  The  husband 
could  dispose  of  his  estate;  and  it  was  subject  to  be  taken  to 
satisfy  his  debts.  The  husband,  of  course,  could  not  create 
any  greater  estate  in  his  grantee  than  the  estate  he  enjoyed. 
For  instance,  he  could  not  grant  any  right  in  her  land  which 
continued  after  the  wife's  death.  On  the  death  of  the  husband, 
the  wife's  rights  to  the  profits  and  use  of  the  land  revived  unaf- 
fected and  clear  from  any  acts  of  the  husband. 

This  estate  which  the  husband  had  in  his  wife's  freehold 
lands  was  known  as  an  estate  by  coverture. 

The  harshness  of  the  common  law  rule  was  relieved  some- 
what by  the  court  of  equity  which  very  early  preserved  to 
the  wife  property  which  had  been  settled  on  her  "for  her  sole 
or  separate  use." 

Statutes  have  generally,  if  not  universally,  abolished  or 
limited  the  estate  by  coverture,  and,  as  a  general  rule,  a  mar- 
ried woman  is  entitled  to  and  may  manage  and  control  her  own 
property,  the  same  as  a  feme  sole. 

At  the  common  law  if,  during  'the  wife's  life  a  child  was 
born,  alive  and  capable  of  inheriting  her  property,  the  hus- 

'Foster  vs.  Marshall,  22  N.  H.a  491. 
Babb  vs.  Perley,  1  Me.,  6. 


60  FREEHOLD   ESTATES   OP   INHERITANCE. 

band's  right  in  his  wife's  inheritable  freehold  land  was  in- 
creased so  that  he  might  use  and  enjoy  the  land,  not  only  dur- 
ing coverture,  but  for  his  own  life.  This  increased  right  of  the 
husband,  resulting  from  the  birth  of  issue,  was  not  supposed 
to  rest  on  any  moral  foundation.  It  was,  therefore,  called 
an  "estate  by  curtesy,"  or  an  "estate  by  the  curtesy  of  Eng- 
land." 

ESTATES  BY  CURTESY, 

AN  ESTATE  BY  CURTESY  IS  THAT  ESTATE  WHICH  A 
HUSBAND  HAS  IN  LAND  OF  WHICH  HIS  DECEASED  WIFE 
WAS  SEISED  DURING  COVERTURE  OF  A  FREEHOLD  ESTATE 
OF  INHERITANCE  PROVIDING  LIVE  ISSUE,  CAPABLE  OF  IN- 
HERITING THE  WIFE'S  ESTATE,  WAS  BORN  DURING  THE 
LIFE  OF  THE  WIFE. 

Tb_e*estate  of  which  a  husband  is  seised  by  reason  of  the 
coverture  is  in  the  wife's  right;  but,  after  the  birth  of  issue, 
if  the  other  essentials  to  an  estate  by  curtesy  exist,  the  nus- 
band  has  an  estate  in  his  own  right.  The  former  confers  on 
him  the  right  to  the  profits  during  coverture;  the  latter  confers 
the  right  to  the  profits  of  the  land  for  his  own  life,  irrespective 
of  the  life  or  death  of  such  issue,  or  the  life  or  death  of  the 
wife. 

It  is  not  our  purpose  to  discuss  at  any  length  the  nature 
and  incidents  of  this  estate,  for  it  has  been  abolished  in  so 
many  States  and  so  limited  in  others  by  statute,  that  it  is  im- 
possible to  do  more  than  point  out  to  the  student  the  common 
law  essentials  and  refer  him  to  the  statutes  and  decisions  of 
his  own  State  for  the  modifications  and  limitations  of  the 
estate  as  it  existed  at  common  law. 

At  the  common  law,  in  order  that  an  estate  by  curtsey  may 
arise  by  operation  of  law,  the  following  essentials  must  exist: 


FREEHOLD   ESTATES   OF   INHERITANCE.  61 

1.  THERE  MUST  BE  A  VALID  MARRIAGE. 

If  the  marriage  is  valid  according  to  the  laws  of  the  place 
where  it  is  contracted,  it  is  valid  everywhere;  if  the  marriage  is 
invalid  at  the  place  where  made,  it  is  invalid  everywhere.4 

As  a  general  rule,  marriage  is  regarded  as  a  civil  contract; 
so  that  an  agreement  bettween  a  man  and  woman  to  assume 
toward  each  other  the  relation  of  husband  and  wife,  followed 
by  cohabitation  as  man  and  wife,  constitutes  a  valid  marriage 
without  any  ceremony.5 

In  England  and  in  a  few  of  the  States  it  has  been  held  that 
a  Ceremony  is  necessary  to  constitute  a  valid  marriage.6 

A  void  marriage  being  of  no  effect,  cannot  confer  any  rights 
upon  the  alleged  husband;  if  the  marriage  is  not  void,  but 
merely  voidable,  the  husband  is  entitled  to  curtesy,  unless  the 
marriage  is  decreed  to  be  void  during  the  life  of  the  wife  by 
a  court  of  competent  jurisdiction. 

2.  THE  WIFE  MUST  HAVE  BEEN  SEISED,  IN  FACT,  DURING  CO- 

VERTURE OF  AN  ESTATE  OF  INHERITANCE. 

Seisin  is  of  two  kinds;  seisin  in  deed  or  fact  and  seisin  in 
law. 

Seisin  in  deed  or  fact  is  the  actual  possession  of  a  freehold 
estate;  seisin  in  law  is  the  present  right  to  possession  without 
an  actual  possession. 

The  reason  of  the  rule  requiring  an  actual  seisin  of  the 
wife  seems  to  be  that  at  the  common  law,  livery  of  seisin  was 
necessary  to  the  transfer  of  a  freehold  estate  by  deed  and  an 
entry  was  necessary  to  perfect  the  title,  and  if  the  wife  failed 
to  enter,  or  the  husband  for  her,  there  was  no  actual  seisin 

4Hutchins  vs.  Kimball,  31  Mich.,  126. 
'Meister  vs.  Moore,  96  U.  S.,  76. 

Peet  vs.  Peet,  52  Mich.,  464. 
"Commonwealth  vs.  Munson,  127  Mass.,  459. 

Classen  vs.  Classen,  57  Ind.,  510. 


62  PEEEHOLD   ESTATES   OF   INHERITANCE. 

and  she  could  not  acquire  an  inheritable  estate,  and  not  hav- 
ing an  estate  of  inheritance,  there  was  nothing  remaining  after 
her  death,  which  her  issue  could  inherit.7 

The  application  of  this  rule  prevented  the  estate  of  curtesy 
arising  in  land  in  which  the  wife  had  a  reversion  or  remainder, 
expectant  upon  a  freehold  estate,  which  did  not  terminate  dur- 
ing the  life  of  the  wife.8 

If  the  wife's  reversion  or  remainder  was  dependent  upon 
an  estate  for  years  which  was  a  mere  chattel  interest,  the 
possession  of  the  tenant  was  deemed  to  be  hers,  and  the  hus- 
band was  entitled  to  an  estate  by  the  curtesy,  even  though  the 
estate  for  years  did  not  terminate  during  the  life  of  the  wife.9 

As  a  general  rule,  in  this  country  a  present  right  to  pos- 
session on  the  part  of  the  wife  where  there  is  no  adverse  pos- 
session, is  sufficient  to  entitle  the  husband  to  curtesy,  if  the 
other  essentials  exist.10  And  in  some  States,  if  the  wife  is 
seised  in  law,  adverse  possession  will  not  prevent  curtesy  at- 
taching.11 

The  estate  of  which  the  wife  is  seised  must  be  a  freehold 
of  inheritance,12  for  a  life  estate  would  terminate  on  the  death 
of  the  wife,  and  her  heirs  could  not  possibly  inherit,  whicn  is 
an  essential  since  "tenancy  by  curtesy  is  an  excrescence  out  of 
the  inheritance."13 

The  right  to  curtesy  exists  in  the  wife's  equitable,  as  well 
as  her  legal  estates,  where  the  trust  is  one  of  inheritance  and 
the  wife  is  equitably  seised  of  same;  but  curtesy  does  not  at- 

7Lessee  of  Borland  vs.  Marshall,  2  Ohio  St.,  308. 
2  Blk.  Com.,  128. 

"Todd  vs.  Oviatt,  58  Conn.,  174;  7  L.  R.  A.,  693. 
"Robertson  vs.  Stevens,  36  N.  C.,  247. 
"Baker  vs.  Oakwood,  49  Hun.,  416. 
"Borland  vs.  Marshall,  2  Ohio  St.,  308. 

Bush  vs.  Bradley,  4  Day,  298. 

"Bigley  vs.  Watson,  98  Tenn.,  353;  38  L.  R.  A.,  679. 
"3  Bac.  Abr.,  11. 


FREEHOLD   ESTATES   OP   INHERITANCE.  63 

tach  to  land  held  in  trust  by  the  wife,  14  neither  does  curtesy 
attach  to  those  equitable  estates  of  the  wife  where  the  inten- 
tion of  the  party  granting  or  devising  the  estate  was  to  exclude 
•curtesy,  if  such  intention  is  expressed  in  the  instrument 
creating  the  estate.15 

It  is  not  necessary  that  the  seisin  of  the  wife  should  exist 
•during  the  life  of  the  issue ;  it  is  sufficient  if  she  is  seised  at  any 
time  during  coverture.  Thus,  if  issue  is  born  and  dies  and  sub- 
sequently, during  coverture,  the  wife  becomes  seised  of  an 
Estate  of  inheritance,  the  husband,  on  the  death  of  the  wife, 
is  entitled  to  curtesy.16 

3.     ISSUE  CAPABLE  OF  INHERITING  THE  WIFE'S  ESTATE  MUST 
BE  BORN  ALIVE  DURING  THE  LIFE  OF  THE  WIFE. 

The  child  must  be  born  alive;  but  even  if  it  dies  immediate- 
ly after  birth,  curtesy  attaches. 

If  it  tries  to  breathe  after  being  fully  delivered  from  the 
mother,  it  is  deemed  to  be  alive,  even  though  the  naval  cord 
is  not  severed  and  there  is  no  independent  circulation.17 

The  child  must  be  born  during  the  life  of  the  wife;  if  the 
<;hild  is  born  after  the  death  of  the  mother  by  means  of  the 
Caesarean  operation,  curtesy  does  not  attach.18 

The  issue  must  be  capable  of  inheriting;  thus,  if  the  wife 
holds  in  estate  tail  female,  the  birth  of  a  male  child  will  not 
•entitle  the  husband  to  curtesy. 

It  is  not  necessary  that  the  birth  of  the  child  and  the  seisin 
•of  the  wife  should  be  concurrent.  If  the  child  is  born  and  dies, 
the  husband's  curtesy  will  attach  not  only  to  all  property  of 

"McKee  vs.  Jones,  6  Pa.  St.,  425. 

"McTigue  vs.  McTigue,  116  Mo.,  136. 

10Templeton  vs.  Twitty,  88  Tenn.,  595. 

"Goff  vs.  Anderson,  91  Ky.,  303;  11  L.  R.  A.,  825. 

18Witham  vs.  Perkins,  2  Me.,  400. 


64  FREEHOLD   ESTATES   OF   INHERITANCE, 

wife  of  which  she  was  seised  at  the  time  of  the  birth,  but  to 
all  property  of  which  she  becomes  seised  after  its  death.19 

In  a  number  of  States  the  statutes  provided  that  the  birth 
of  issue  is  not  necessary  in  order  that  curtesy  may  attacn.-'" 

On  the  birth  of  the  issue  the  husband  becomes  seised  in 
his  own  right,  for  life,  of  a  vested  freehold  estate  in  all  prop- 
erty of  which  the  wife  is  then  seised  of  a  freehold  estate  of 
inheritance,  and  such  estate  cannot  be  divested  by  act  of  the 
wife,  for  she  becomes  on  creation  of  the  life  estate  in  her  hus- 
band, merely  the  owner  of  an  estate  in  remainder.21  The  mis 
band's  estate  at  this  time  and  before  the  death  of  the  wne  is. 
known  as  curtesy  initiate.  This  estate,  like  other  life  estates. 
may  be  conveyed  by  the  husband,  and  is  subject  to  his  debts,, 
even  during  the  life  of  the  wife,  and  he  has  in  general  the 

same  rights  as  other  life  tenants. 

« 

In  some  States  it  has  been  held  that  the  estate  vests  on  the 
birth  of  issue,  and  that  it  cannot  afterwards  be  affected  b.y  acts, 
of  the  legislature.22 

In  some  of  the  States,  either  by  express  statute  or  by  judi 
cial  decisions  under  the  married  women's  acts  permitting  the 
wife  to  control  her  own  property,  the  estate  by  curtesy  initiate 
is  not  regarded  as  vested  onb  irth  of  issue,  but  is  a  mere  con- 
tingent estate,  dependent  upon  the  husband's  survival  of  the 
wife;  and  in  these  States  the  estate  may  be  abolished  or  niodi- 


'•Templeton  vs.  Twitty,  88  Tenn.,  595. 

20This  is  the  rule  in  Pennsylvania,  Wisconsin,  Ohio  and  Nebraska. 
21Stewart  vs.  Ross,  50  Miss.,  776. 
Rouse  Est.  vs.  Directors  of  Poor,  169  Pa.  St.,  116. 
So  it  was  held  in  Illinois  that  curtesy  initiate  is  a  vested  estate 
which  cannot  be  destroyed  by  legislation  which  takes  effect  after  the 
estate  comes  into  existence. 

McNeer  vs.  McNeer,  142  111.,  388;  19  L.  R.  A.,  256. 
Contra  Alexander  vs.  Alexander,  85  Va.,  353;  1  L.  R.  A.,  125. 


FREEHOLD   ESTATES   NOT   OF   INHERITANCE.  65 

fied  by  statute  at  any  time  before  the  estate  becomes  vested 
by  The  death  of  the  wife.-3 

4.     THE  DEATH  OF  THE  WIFE. 

On  the  death  of  the  wife  the  curtesy  becomes  consummate, 
and  the  husband's  estate  devolves  upon  him  by  operation  of 
law,  and  it  is  unnecessary  to  make  an  entry  or  do  any  other 
act.  Tenant  by  curtesy  consummate  has  all  the  rights,  and  is 
subject  to  the  same  restrictions  as  an  ordinary  life  tenant. 

HOW  BARRED, 

The  estate  by  the  curtesy  may  be  barred  at  the  common 
law  by  an  agreement  between  the  husband  and  wife,  made 
either  before  or  after  marriage,  whereby  the  husband  expressly 
agrees  to  relinquish  his  curtesy;24  or  by  the  husband's  joining 
in  a  conveyance  of  the  property  with  the  wife.  A  decree  of 
divorce  a  vinculo,  dissolves  the  relation  of  husband  and  wife 
and  terminates  all  rights  of  the  husband  in  his  wife's  land 
which  arise  out  of  the  marital  relation.25 

At  the  common  law,  a  divorce  a  mensa  et  thoro  does  not 
affect  the  curtesy  of  husband,  since  the  relation  of  husband 
and  wife  still  continues.  This  is  the  rule  in  most  States;  it  has 
been  held,  however,  that  where  the  estate  of  the  husband  is 
vested  and  has  passed  into  the  hands  of  a  bona  fide  purchaser 


"Duncan  vs.  Terre  Haute,  85  Ind.,  108. 

Thurber  vs.  Townsend,  22  N.  Y.,  517. 
!<Charles  vs.  Charles,  8  Gratt.  (Va.),  486. 
"Burgess  vs.  Muldoon,  18  R.  I.,  607;,  24  L.  R.  A.,  607. 

By  statute  in  some  states  if  the  divorce  be  granted  the  husband 
on  the  wife's  fault,  the  former  will  not  lose  his  rights  as  tenant  by 
curtesy  initiate.  In  some  states  the  statutes  provide  that  on  divorce 
the  wife  shall  be  entitled  to  all  her  real  estate,  except  when  the  divorce 
is  granted  for  adultery  of  the  wife,  and,  in  some  states,  the  statutes  pro- 
vide that  the  adultery  of  the  husband  will  work  a  forfeiture  of  his 
estate. 

Meacham  vs.  Bunting,  156  111.,  586;  28  L.  R.  A.,  618. 


66  FREEHOLD    ESTATES    NOT    OF    INHERITANCE. 

prior  to  the  decree    of  divorce,  the  latter's  rights  will  not  be 
affected  by  the  decree.26 

It  is  possible  to  settle  upon  the  wife  real  property,  so  that 
the  right  to  curtesy  of  the  husband  will  not  arise.  It  is  a  com- 
mon practice  in  settlements  on  the  wife  to  expressly  exclude 
the  husband  from  curtesy.  If  in  the  settlement  the  intention  to 
exclude  the  husband  from  curtesy  is  clear  and  unquestioned, 
the  estate  by  the  curtesy  will  not  arise.27 

STATUTES. 

In  many  of  the  states  the  estates  by  the  curtesy  is  abolished 
by  statute.28  In  other  states,  the  rights  of  the  husband  have 
been  modified  and  limited. 

It.  has  been  held  that  the  married  women's  statutes,  which 
enable  a  married  woman  to  possess  and  enjoy  her  property  free 
from  the  control  of  the  husband,  impliedly  abrogate  the  right 
of  the  husband  to  curtesy.29 

Other  courts  hold  that  the  statutes  granting  the  right  of 
the  wife  to  control  her  own  property  unless  they  expressly  or  by 
necessary  implication  abolish  or  limit  the  estate,  do  not  affect 
the  husband's  right  to  curtesy  on  the  death  of  his  wife. 

26Gillespie  vs.  Worford,  2  Cold.   (Tenn.),  632. 

••lliKlil    vs.  Hall,  74  WIs..  152,  3  L.  R.    A..,  857. 

This  was  an  action  of  ejectment  brought  by  the  heirs  of  a  married 
woman  against  persons  claiming  title  under  the  husband's  right  of 
curtesy. 

The  deed  to  the  property  in  question  to  the  married  woman  con- 
tained this  clause:  "To  her  sole  and  separate  use,  free  from  the  inter- 
ference or  control  of  her  said  husband  or  any  husband,  and  her  heirs 
and  assigns,  to  her  and  their  only  proper  use  and  benefit  forever." 

The  court  held  that  this  clause  excluded  the  husband's  right  of 
curtesy. 

28The  estate  by  curtesy  has  been  abolished  by  statute  or  judicial 
legislation  in  the  following  states:  Alabama,  Arizona,  Arkansas.  Cali- 
fornia, Dakota,  Florida,  Georgia,  Illinois,  Indiana,  Iowa,  Kansas,  Louis- 
iana, Michigan,  Minnesota,  Mississippi,  Montana,  Nevada,  South  Caro- 
lina, Texas  and  Wyoming. 

"Tong  vs.  Marvin,  15  Mich.,  60. 


FREEHOLD    ESTATES    NOT    OF    INHERITANCE.  67 

The  latter  ruling  is  supported  by  the  weight  of  authority.30 
In  a  number  of  states  by  statute  the  husband  is  entitled 

only  to  curtesy  in  those  lands  of  which  the  wife  was  seized  at 

the  time  of  her  death. 

In  other  states  the  husband  has  curtesy  only  in  the  lands 

which  the  wife  did  not  convey  during  her  life  or  devise  by 

her  will. 

DOWER 

Dower  is  a  provision  made  by  the  common  law  for  the  sus- 
tenance of  the  widow.31  It  is  founded  upon  the  moral  and 
equitable  claim  of  the  widow  for  support  and  maintenance 
out  of  the  estate  of  her  deceased  husband.32  For  this  reason 
the  estate  has  always  been  favored  by  the  law. 

Lord  Coke  says:  "There  are  three  things  highly  favored  in 
law— life,  liberty  and  dower." 

The  exact  origin  of  the  right  of  dower  is  not  known,  but 
it  has  existed  in  various  forms  from  ancient  times.  The  extent 
of  the  estate  varied  under  the  old  law,  from  one-tenth  to  one- 
half;  but  was  finally  settled  at  the  common  law  as  one-third. 
Under  the  English  law,  there  were  five  kinds  of  dower;  only 
one  of  these  has  been  recognized  in  the  United  States,  viz: 
dower  at  the  common  law. 


'"Hatfield  vs.  Sueden,  54  N.  Y.,  280. 
Luntz  vs.  Greve,  102  Ind.,  173. 
Breeding  vs.  Davis,  77  Va..  639. 

3IDower  has  sometimes  been  confused  with  dowry.  Dowry  is  that 
portion  which  a  wife  brings  to  her  husband  in  marriage,  and  has  no 
resemblance  to  dower. 

32The  court  says,  in  Banks  vs.  Button,  2  Sr.  Wms.,  702:  "The  wife 
is  the  proper  object  of  the  care  and  lundness  of  the  husband;  the 
husband  is  bound  by  the  law  of  God  and  man  to  provide  for  her  during 
his  life;  and  after  his  death  the  moral  obligation  is  not  at  an  end,  but 
he  ought  to  take  care  of  her  provision  during  her  own  life.  Thus  is  the 
wife  said  to  have  a  moral  right  to  dower." 


68  FREEHOLD   ESTATES    NOT   OF   INHERITANCE. 

DOWER,  AT  THE  COMMON  LAW,  IS  THE  LIFE  ESTATE  OF 
A  WIDOW  IN  ONE-THIRD  OF  ALL  HEAL  PROPERTY,  OF 
WHICH  HER  HUSBAND  WAS  BENEFICIALLY  SEISED  IN  LAW 
OR  IN  FACT,  DURING  COVERTURE,  OF  A  FREEHOLD  ESTATE 
OF  INHERITANCE,  WHICH  HER  ISSUE  MIGHT  INHERIT. 

In  order  that  an  estate  of  dower  may  arise  the  following 
essentials  must  exist:  (1)  A  valid  marriage,  (2)  Seisin  of  the 
husband,  (3)  Death  of  husband. 

1.  MARRIAGE. 

The  claim  of  dower  is  founded  upon  the  marital 
relation;  it  is  only  by  virtue  of  that  relationship  that 
a  woman  has  any  claim  which  arises  by  implication  of  law  upon 
a  man's  property.  It  follows,  therefore,  that  a  void  marriage, 
even  though  the  woman  innocently  supposes  herself  to  be  mar- 
ried, cannot  give  dower.83 

As  in  the  case  of  curtesy,  if  the  marriage  is  voidable,  and 
has  never  been  avoided  during  the  life  of  both  parties,  dower 
will  attach.  The  essentials  of  a  valid  marriage  are  discussed 
under  the  head  "Tenancy  b}f  the  Curtesy." 

2.  SEISIN  OF  THE  HUSBAND. 

The  requisites  as  to  the  seisin  of  the  husband  may  be 
stated  in  the  following  propositions: 

(a)  THE  HUSBAND  MUST  HAVE  BEEN  SEISED  OF  A  FREE- 
HOLD ESTATE  OF  INHERITANCE  AT  SOME  TIME  DURING 
COVERTURE. 

"Smith   vs.   Smith,  5  Obio   St.,  32. 

Petition  by  Ruth  Smith  to  recover  dower  from  the  estate  of  her 
alleged  husband,  David  Smith. 

Petitioner's  name  was  formerly  Atherton  and  she  married  one 
Dennis.  Subsequently  petitioner  separated  from  her  husband,  and, 
without  any  divorce,  married  Smith.  In  this  proceeding  she  claims 
dower  in  land  of  which  David  Smith  was  seised  after  her  alleged 
marriage  to  him.  The  court  held  that  the  second  marriage,  while  the 
first  husband  was  living,  was  absolutely  void  and  not  voidable,  and  that 
therefore  petitioner  was  not  entitled  to  dower.  Petition  dismissed. 

See  also  Price  vs.  Price,  124  N.  Y.,  589;  12  L.  R.  A.,  359. 


FREEHOLD    ESTATES    NOT    OF    INHERITANCE.  69 

The  estate  of  which  the  husband  is  seised  must  be  a  free- 
hold. Dower  does  not  attach  to  estates  for  years  or  any  in- 
terest in  lands  which  is  not  a  freehold.34 

For  the  same  reason,  a  widow  is  not  at  the  common  law  en- 
titled to  dower  in  an  estate  pur  autre  vie,  where  the  husband 
dies  before  the  person  on  whose  life  the  estate  is  limited;  for, 
as  has  already  been  stated,  what  remains  of  the  estate  after 
the  death  of  the  tenant  pur  autre  vie,  is  a  mere  personal  in- 
terest, which,  at  the  common  law,  went  to  the  first  occupant. 

But  in  some  states  statutes  provide  that  after  the  death 
of  the  tenant  pur  autre  vie,  what  remains  of  that  estate  shall 
be  considered  as  real  property,  and  descend  to  his  heirs;  but 
it  is  believed  that  such  statutes  do  not  operate  to  confer  dower. 

The  husband  must  be  seised  not  only  of  freehold  estate, 
but  it  must  be  a  freehold  of  inheritance.  The  reason  of  this  is 
at  once  apparent.  A  freehold  estate  not  of  inheritance,  as  an 
estate  for  life  of  another,  terminates  on  the  death  of  the  ten- 
ant. Thus,  where  a  man  was  a  tenant  for  life,  and  the  fee  was 
in  his  heirs,  it  was  held  that  his  widow  was  not  'entitled  to 
doweiv'"1  While  the  estate  of  the  husband  must  be  a  freehold 
estate  of  inheritance,  yet  it  need  not  be  an  estate  in  fee  simple. 

"Goodwin   vs.   Goodwin,   33   Conn.,   314. 

Horace  Goodwin  devised  and  bequeathed  a  portion  of  his  property 
to  his  wife  and  declared  his  purpose  to  be  that  the  devise  and  bequest 
should  not  bar  her  right  of  dower. 

A  part  of  deceased's  property  consisted  of  an  estate  for  nine  hun- 
dred and  ninety  nine  years,  and  this  case  raised  the  question  whether 
the  wife  was  entitled  to  dower  in  that  part  of  the  estate. 

It  was  conceded  by  the  wife's  solicitor  that  dower  would  not  attach 
to  an  estate  for  a  short  term  of  years,  but  it  was  contended  that  an 
estate  for  so  long  a  term  of  years  was  for  all  practical  purposes  a  fee 
simple,  and  that  the  reversion  was  a  mere  imaginary  estate. 

The  court  held  that  an  estate  for  years  was -a  mere  chattel  real 
classed  as  personal  property,  and  that  the  length  of  term  did  not  affect 
the  nature  of  the  estate,  and  that  therefore  the  wife  was  not  entitled 
to  dower. 

35Harriot  vs.  Harriot,  49  N.  Y.  S.,  447. 
Burris  vs.  Page,  12  Mo.,  358. 


70  FREEHOLD    ESTATES    NOT    OF    INHERITANCE. 

Dower  attaches  as  well  to  a  determinate  or  conditional  fee  as 
to  estates  in  fee  simple  or  fee  tail.  In  the  case  of  conditional 
fees,  the  wife's  dower  is  subject  to  the  same  conditions  winch 
attach  to  her  husband's  estate,  and  her  dower  will  continue  un- 
til the  estate  is  defeated  by  the  happening  of  the  condition  on 
which  it  was  limited.  That  is,  the  estate  of  dower  will  not  con- 
tinue to  exist  after  the  extinction  of  the  estate  from  which  it  is 
derived.36  It  is  not  essential  that  the  husband's  title  should  be 
perfect.  As  against  persons  claiming  title  through  her  hus- 
band, the  widow  is  entitled  to  dower,  even  though  the  hus- 
band's possession  was  wrongful,  and  the  wife  may  have  dower 
until  she  is  dispossessed  by  the  paramount  title. 

The  seisin  of  the  husband  must  have  been  at  some  time 
during  coverture.  At  the  common  law  it  was  not  necessary 
that  the  husband  should  have  been  seised  at  the  time  of  his 
death.  In  some  states,  the  common  law  has  been  changed  by 
statute,  so  that  the  wife  is  entitled  to  dower  only  in  the  land 
of  which  the  husband  was  seised  at  the  time  of  his  death.  The 
effect  of  such  statutes  is  to  permit  the  husband  to  convey 


"Greene    vs.    Reynolds,    7—    Hun.,    ."",<;.">. 

This  was  an  action  to  declare  the  dower  of  the  defendant  in  certain 
premises  to  be  forfeited  and  terminated.  Phebe  Abbey  executed  and 
delivered  to  her  son  a  conveyance  which  contained  conditions  requiring 
the  son  to  support,  maintain  and  clothe  her  during  her  natural  life,  pay 
her  funeral  expenses,  keep  the  building  on  the  premises  insured  and  in 
good  repair  and  pay  the  taxes  thereon,  and  provided  that  upon  his 
failure  to  perform  any  of  said  covenants  and  conditions,  the  grant 
should  be  void  and  of  no  effect.  The  son  accepted  the  deed,  assented 
to  its  conditions  and  went  into  possession  of  the  premises,  but  he  wholly 
failed  and  neglected  to  perform  the  conditions  agreed  upon,  and  con- 
ceded his  inability  to  do  so;  he  afterwards  at  the  request  of  his  mother, 
reconveyed  to  her  the  same  premises.  The  wife  of  the  son  refused  to 
join  in  the  latter  deed  and  this  action  was  commenced.  The  court 
held  that  the  defendant's  dower  right  was  a  mere  incident  to  the  title 
held  by  the  husband;  that  her  right  to  dower  depended  upon  the  per- 
formance by  her  husband  of  the  conditions  mentioned;  and  that  the 
dower  interest  of  the  wife  fell  with  the  estate  of  the  husband. 

See  Toomey  vs.  McLetrn,  125  Mass.,  122. 

Laboree  vs.  Laboree,  33  Me.,  343. 


FREEHOLD    ESTATES    NOT   OF   INHERITANCE.  il 

during  his  lifetime  his  real  property,  free  from  the  claims  of 
his  wifr 

(b)  THE  SEISIN  OF  THE  HUSBAND  MUST  BE  SOLE. 

The  husband  must  be  solely  seised.  We  shall  afterwards 
see  that  one  of  the  incidents  of  joint  estates  is  that  the 
survivor  or  survivors  takes  the  entire  property.  If  the  husband 
were  jointly  seised,  his  interest  would,  upon  his  death,  be  ab- 
sorbed by  the  surviving  tenants,  and  there  would  not  be  any- 
thing to  which  dower  could  attach.37 

If  the  husband  owns  land  in  common  with  others,  he  is 
deemed  to  be  solely  seised  of  an  undivided  portion,  and  his 
widow  is  entitled  to  dower  in  his  portion.38. 

In  some  states,  the  right  of  survivorship  in  joint  estates  -is 
abolished  by  statute,  and  in  such  states  dower  attaches  to  joint 
estates. 

(c)   THE  SEISIN  OF  THE  HUSBAND  MUST  BE  BENEFICIAL. 
The  wife  is  not  entitled  to  dower  in  land  in  which  the  hus- 
band has  not  a  beneficial   interest.     Thus,   the   wife   is  not 


•'Babbitt  vs.  Babbitt,  41  N.  J.,  E«I.,  392. 

Complainants  were  owners  of  certain  property  which  they  sold  to 
defendant  on  a  contract.  Defendant  subsequently  refused  to  carry  out 
the  contract,  and  complainants  then  filed  this  bill  for  specific  perform- 
ance. The  defendant  contended  that  he  could  not  be  compelled  to  per- 
form the  contract  to  purchase,  since  the  title  of  complainants  was 
defective,  in  that  the  wife  of  complainant's  grantors,  who  held  the  land 
as  joint  tenants  in  fee,  did  not  join  in  the  conveyance  to  complainants. 

The  court  held  that  at  common  law,  dower  did  not  attach  to  joint 
estates,  since  on  death  of  one  joint  tenant  the  entire  estate  vested  in 
the  survivor;  and  that  the  statute  which  provided  that  the  wife  should 
have  dower  in  all  the  real  estate  of  which  the  husband  was  seised  of 
an  estate  of  inheritance,  did  not  change  the  common  law,  and  that  by 
the  term  "estate  of  inheritance"  was  meant  an  estate  of  inheritance  in 
severalty  or  in  common;  and  that  the  wives  of  complainants'  grantors 
were  not  entitled  to  dower  in  property  held  in  joint  title  by  their 
husbands. 

3SSee  post  page  338,  as  to  the  nature  of  joint  estates  and  estates  in 
common. 


72  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

entitled  to  dower  in  land  of  which  the  husband  is  seised  as 
trustee  for  others,30  unless  the  husband  had  some  beneficial 
interest.40  If  the  husband  exchange  one  piece  of  land  for  an- 
other, the  wife  is  not  entitled  to  dower  in  both  pieces;  for  he  is 
not  beneficially  seised  of  both;  and  she  must  elect  in  which 
piece  she  will  take  dower. 

For  the*  same  reason,  if  the  land  is  purchased  by  the  hus- 
band and  immediately  mortgaged  by  him  for  the  purchase 
money,  as  against  the  mortgagee,  the  wife's  claim  of  dower  is 
subsequent  to  the  mortgage.41 

The  deed  and  the  mortgage  are  regarded  as  parts  of  the 
same  transaction,  and  constitute  but  a  single  act.  As  against 
the  mortgagee,  the  husband  has  but  a  transitory  seisin,  with- 
out a  beneficial  interest  that  would  entitle  the  wife  to  dower.4- 

In  many  states  statutes  expressly  provide  that  the  widow 
shall  not  be  entitled  to  dower  as  against  a  purchase  money 
mortgage.  So,  if  the  husband  was  seised  of  land  for  an  instant, 
merely  for  the  purpose  of  transferring  the  title  to  another,  his 
widow  would  not  be  entitled  to  dower,  since  there  is  no  bene- 
ficial interest  in  the  husband.43 


vs.  Bushnell,  13  N.  E.,  245. 
40In  re  estate  of  Pulling,  97  Mich.,  375. 
"Johnson  vs.  Plume,  77  Ind.,  166. 

^Fontaine  vs.  Boatmens  Savings  Inst.,  57  Mo.,  552,  a  mortgage  also 
to  a  third  person  to  secure  purchase  money  will  not  be  subject 
to  widow's  dower. 

Kittle  vs.  Van  Dyke,  1  Sand  Chy.  (N.  Y.),  76. 
^Fontaine    vs.   Boatmens,    57   Mo.,    552. 

This  was  a  suit  for  the  assignment  of  dower.  Petitioner  claimed, 
as  wife  of  Felix  Fontaine.  The  answer  of  defendant  denied  that  said 
Felix  was  ever  seized  of  such  an  estate  as  to  entitle  his  wife  to  dower. 
During  coverture  one  Provenchere  and  his  wife  Catherine  conveyed 
the  property  to  said  Felix,  who  on  same  day  conveyed  the  property  to 
a  third  person  in  trust  for  the  sole  use  of  said  Catherine  Provenchere 
and  the  heirs  of  hei  body. 

The  court  held  that  Fontaine,  in  the  transaction,  was  a  mere  con- 
duit employed  by  Provenchere  to  -pass  the  title  to  a  third  person  for  the 
use  of  his  wife,  and  that  his  seizure  was  transitory  and  not  beneficial. 
It  was  held,  therefore,  that  the  plaintiff  was  not  entitled  to  dower. 


FREEHOLD    ESTATES    NOT    OF    INHERITANCE.  73 

And  it  has  been  held,  where  property  is  deeded  to  the  hus- 
band and  he  immediately  executed  a  bond  to  reconvey  the 
same,  that  the  wife  acquired  no  right  of  dower.44 

(d)  THE  SEISIN  OF  THE  HUSBAND  MUST  BE  IN  LAW  OB 
IN  FACT. 

It  is  essential  that  the  husband  be  seised  in  law  or  in  fact.*" 
If  a  life  estate  is  prior  to  the  husband's  estate  and  it  is  not 
determined  during  the  life  of  the  husband,  he  is  not  imme- 
diately seised  of  his  estate,  and  his  widow  is  not  entitled  to 
dower.  Thus,  the  widow  would  not  be  entitled  to  dower  in 
land  which  was  previously  assigned  to  her  husband's  mother 
for  dower,  unless  such  dower  estate  were  terminated  during  the 
life  of  the  husband.46  So,  if  the  husband  has  a  vested  re- 
mainder in  real  property,  depending  upon  a  previous  life  estate 

"Hallet  vs.  Parker,  39  AL,  583. 

"Pltclpei    vs.   Plielps,    143    N.    Y.,    197,   25   L,.    R.    A.,    GU5. 

This  was  an  action  brought  by  the  wife,  Susan  A.  Phelps,  against 
her  husband,  John  A.  Phelps,  and  others,  to  protect  her  inchoate  rights 
of  dower  in  land  held  by  a  third  person,  but  which  was  paid  for,  by  her 
husband.  Her  complaint  set  forth  a  marriage,  birth  of  children  and  a 
separation  between  herself  and  her  husband,  caused  by  his  wrongful 
conduct  and  desertion;  that  since  the  husband's  desertion  of  her,  he 
had  with  the  intent  of  defrauding  her  dower  rights  in  his  real  prop- 
erty, purchased  various  pieces  of  land  and  caused  the  title  to  be  taken 
in  the  name  of  one  Lewis,  under  an  arrangement  and  agreement  with 
said  Lewis  that  he  (the  husband)  should  receive  all  the  benefit  of  and 
have  full  control  over  said  property,  which  agreement  was  in  writing. 

The  Court  dismissed  the  complaint  for  the  following  reasons:  "To 
entitle  a  wife  to  dower,  the  husband  must  be  seised  either  in  fact  or  in 
law  of  a  present  freehold  in  premises  as  well  as  of  an  estate  of  inherit- 
ance. *  *  *  Concededly  in  this  case  the  husband  was  never  seised 
of  the  property  in  question,  and  the  agreement  set  forth,  and  which  is 
claimed  to  confer  upon  him  its  real  ownership,  could  create  no  interest 
or  right  to  possession.  *  *  *  The  agreement  is  purely  executory  in 
its  nature,  and,  if  not  complied  with  by  Lewis,  would  only  have  given 
to  Phelps  a  cause  of  action  for  its  breach." 

See  Stroup  TS.  Stroup,  140  Ind.,  179,  39  N.  E.,  864,  27  L.  R.  A.,  523. 

"Dmlley  vs.  Dnrtley.  76  Wis..  5O7.  S  I,.  R.  A.,  S14. 

William  H.  Dudley  was  the  owner  of  property,  a  part  of  which  was 
a  homestead,  in  the  City  of  Madison.  Wis.,  of  the  value  of  $7,000.  He 
died  intestate,  leaving  a  wife.  Elizabeth  H.  Dudley,  defendant  in  the 
above  cause,  and  a  son  Charles.  All  of  his  real  estate  was  assigned 
to  his  son.  subject  to  the  mother's  homestead  right  and  right  of  dower. 


74  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

which  is  not  determined  during  his  life  time,  he  is  not  imme- 
diately seised  of  the  property,  and  his  widow  is  not  entitled  to 
dower  in  the  remainder.47 

For  the  same  reason,  a  widow  is  not  entitled  to  dower  in 
any  estate  of  her  husband's,  dependent  on  the  termination  of  a 
prior  freehold  estate,  if  such  freehold  estate  is  not  determined 
during  the  life  of  her  husband.48 

If  the  right  of  possession  of  the  husband  is  dependent  upon 
the  termination  of  a  prior  estate  which  is  less  than  a  freehold, 
as  an  estate  for  years,  his  wife  is  entitled  to  dower,  even  though 
the  husband's  right  to  possession  did  not  accrue  during  his 
life;  for  an  estate  less  than  a  freehold  is  a  mere  personal  in- 
terest and  the  seisin  is  in  the  owner  of  the  expectant  freehold 
estate. 


After  his  father's  death  Charles  Dudley  married  and  subsequently 
died,  before  his  mother,  and  his  wife  brought  action  to  establish  her 
dower  in  the  premises  held  by  the  mother  as  her  homestead,  and  in 
other  property. 

The  Court  held  that  Elizabeth  H.  Dudley  was  seized  of  a  life  es- 
tate in  the  homestead  property,  and  that,  therefore,  Charles  Dudley 
did  not  die  seised  of  it,  and  that  the  plaintiff  could  have  no  dower  in  it; 
that  the  homestead  right  of  the  defendant  was  an  estate  in  possession 
and  actual  occupancy  in  one  alone  for  life,  and  was  inconsistent  with 
dower  in  another  person. 

See  also  Browning  vs.  Harris.  99  111.,  456. 
Hafer  vs.  Hafer,  33  Kas.,  449. 
47Durando  vs.  Durando,  23  N.  Y.,  331. 
Baker  vs.  Baker,  167  Mass.,  575. 

«8Dura.n«lo  vs.  Dnraiido,  23  N.  Y.,  331. 

A  father  died  seised  of  certain  land  which  he  devised  to  his  wife 
for  life,  and  after  her  death  to  his  children.  The  petitioner  married 
one  of  the  testator's  sons,  and  her  husband  died  seven  years  before  the 
death  of  the  life  tenant,  his  mother.  After  the  death  of  the  mother, 
part  of  the  land  was  taken  by  eminent  domain  on  a  proceeding  to  ex- 
tend a  street,  and  damages  for  such  taking  was  paid  into  court.  Peti- 
tioner, as  widow  of  the  son,  asked  for  a  portion  of  the  money.  The 
court  held  that  the  life  estate  not  having  terminated  during  the  life  of 
the  husband  of  the  petitioner,  he  was  not  seised  either  in  fact  or  in 
law  of  an  estate  of  inheritance  during  coverture,  and  his  widow  was, 
therefore,  not  entitled  to  dower.  Petition  denied. 


FREEHOLD    ESTATES    NOT    OF    INHERITANCE.  75 

EQUITABLE  ESTATES. 

At  the  common  law  the  wife  was  entitled  to  dower  only  in 
the  husband's  legal  estates,  and  had  no  dower  in  his  equitable 
estates.  In  many  of  the  states  the  common  law  rule  has  been 
changed  by  statute,  and  the  wife  is  given  the  right  to  dower 
in  the  husband's  equitable  estates.49  In  a  few  States,  the  com- 
mon law  rule  is  still  in  force. 

Under  the  common  law  rule,  equities  of  redemption  and 
all  uses  and  trusts  for  the  husband's  benefit  were  exempted 
from  dower.  To  entitle  the  wife  to  dower  in  equitable  estates 
under  the  statutes,  the  husband  must  have  more  than  a  mere 
equity,  he  must  have  an  inheritable  equitable  interest. 


"Everitt  vs.  Everitt,  71   Iowa,  2JJ1. 

The  Iowa  statute  provides  that  a  wife  shall  be  entitled  to  "one- 
third  in  value  of  the  legal  or  equitable  estates  in  real  property  pos- 
sessed by  the  husband  at  any  time  during  the  marriage." 

This  was  an  action  brought  by  fhe  widow  of  Geo.  M.  Everitt  to  set 
aside  a  certain  conveyance,  and  to  have  one-third  of  the  value  of  the 
property  set  off  to  the  plaintiff  as  her  widow's  share  therein.  The  plain- 
tiff's husband,  Geo.  M.  Everitt,  conveyed  the  land  in  question  to  a  man 
named  Young  in  consideration  of  an  indebtedness.  Such  conveyance 
was  made  before  his  marriage  to  the  plaintiff.  Subsequently  a  parol 
agreement  was  entered  into  whereby  Young  agreed  to  reconvey  the 
property  to  the  plaintiff's  husband  upon  the  payment  of  the  amount 
of  the  indebtedness.  In  pursuance  of  this  agreement  plaintiff's  hus- 
band made  a  number  of  payments  to  Young  to  an  amount  equal  to  the 
original  indebtedness,  with  interest  thereon.  Plaintiff's  husband,  how- 
ever, instead  of  taking  a  deed  to  himself,  directed  Young  to  make  a 
deed  to  his  son  by  a  former  marriage,  the  defendant  in  this  case. 

The  Court  ruled  as  follows.  "The  question  whether  the  plaintiff 
has  a  dower  right  in  the  property  depends  upon  whether  the  husband 
acquired  a  legal  or  equitable  title  therein  under  the  agreement  with 
Young.  The  contract  was  by  parol,  but  Everitt  took  possession  under 
it  and  made  valuable  improvements  upon  the  property,  and  continued 
in  possession  up  to  the  time  of  his  death.  At  the  time  he  directed  rhe 
conveyance  to  be  made  to  the  defendant,  the  full  amount  of  the  con- 
sideration had  been  paid.  That  he  was  the  equitable  owner  of  the  prop- 
erty at  that  time  cannot  be  doubted.  All  that  was  required  to  be  done 
in  order  to  vest  him  with  the  actual  ownership  was  the  passing  of  the 
naked  legal  title  to  him;  and  that  he  was  entitled  to  have  done.  It  is 
quite  clear  that  plaintiff  is  entitled  under  the  statute  to  have  one-third 
in  value- of  the  property  set  off  to  her." 


76  FREEHOLD    ESTATES    NOT   OF    INHERITANCE. 

As  a  general  rule  the  statutes  provide  that  the  wife  h*as 
dower  only  in  equitable  estates  of  which  the  husband  was 
equitably  seized  at  the  time  of  his  death. 

(e)  THE  SEISIN  OF  THE    HUSBAND    MUST    BE    IN    LAND, 
WHICH  MIGHT  POSSIBLY  DESCEND   TO   THE    ISSUE   OF   THE 
MARRIAGE. 

If  land  were  given  to  A  for  life  and  afterwards  to  his  heirs 
by  his  wife  B,  and  if  ]>  should  die  and  A  should  marry  C,  the 
issue  of  the  latter  marriage  could  not  possibly  inherit  the 
property,  and  C  would  not  be  entitled  to  dower. 

The  student  will  note  that  in  dower  the  birth  of  issue  is  not 
essential;  but  it  is  essential  in  order  that  the  wife  should  have 
dower,  that  if  she  has  any  children  they  may  possibly  inherit 
the  property  in  which  she  claims  dowrer. 

(f)  IN  ALL  THE  ESSENTIALS  MENTIONED  AS  TO  SEISIN 
EXIST,  IT  IS  SUFFICIENT  TO  GIVE  DOWER  IF  THE  HUSBAND 
IS  SEISED  FOR  ONLY  AN  INSTANT.50 

IN  WHAT  ESTATES  AND  PROPERTY  DOWER  MAY  EXIST. 

In  connection  with  the  discussion  as  to  the  requisites  of  the 
seisin  of  the  husband,  we  have  pointed  out  to  the  student  the 
legal  estates  in  which  the  wife  may  or  may  not  have  dower. 

We  have  seen  that  the  wife  at  common  law  is  entitled  to 
dower  in  the  following  estates:  Estates  in  fee  simple  and  fee 
tail;  conditional  and  determinable  fees  and  estates  in  common. 
We  have  also  seen  that  the  wife  is  not  entitled  to  dower  in  the 
following  estates:  Estates  for  life;  estates  for  years;  dower 
estates;  estates  in  joint  tenancy;  estates  in  remainder  or  re- 
version dependent  on  termination'  of  a  prior  freehold  estate; 


^Mclntyre  vs.  Costello,  47  Hun.,  289. 
Sutherland  vs.  Sutherland,  69  111.,  481. 


FREEHOLD   ESTATES    NOT   OF   INHERITANCE.  Ti 

legal  estates  in  which  the  husband  had  no  beneficial  interest, 
arid  at  the  common  law  in  equitable  estates. 

These  various  estates  may  exist  in  various  kinds  of  real 
property,  and  it  is  perhaps  the  most  opportune  place  to  discuss 
the  law  of  dower  in  relation  to  particular  classes  of  property. 

MORTGAGED  LANDS. 

A  mortgage  does  not  convey  such  an  estate  to  the  mort- 
gagee as  to  entitle  his  widow  to  dower. 

The  mortgagor  is  regarded,  until  foreclosure,  as  the  holder 
of  the  title.  It  follows  that  the  mortgagor's  wife  is  entitled 
to  dower  in  the  mortgaged  premises,  and  that  the  mortgagee's 
wife  has  no  dower  interest  in  them  until  the  mortgage  has  been 
foreclosed  and  the  title  vests  in  her  husband. 

The  inchoate  dower  interest  of  the  wife  in  her  husband's 
property  is  in  no  way  affected  by  a  mortgage  in  which  she  does 
not  join.  If  the  wife  joins  in  the  mortgage,  she  releases  her 
dower  and  may  not,  thereafter,  as  against  the  mortgagee,  or 
those  holding  under  the  mortgage,  maintain  a  claim  for  dower, 
but,  as  against  another  person,  she  is  still  entitled  to  dower. 

The  effect  of  the  wife  joining  in  the  mortgage  is  merely  to 
subject  her  interest  to  it,  and  she  is  entitled  to  the  same  rights 
and  remedies  against  the  mortgagee  as  an  ordinary  mortgagor. 

Thus,  if  on  foreclosure  the  property  realizes  more  than  suf- 
ficient to  cover  the  amount  due  under  the  mortgage  and  costs, 
the  wife  in  States  giving  dower  in  the  equitable  estates  will  be 
entitled  to  dowrer  in  the  surplus.51 

So,  also,  the  wife  having  an  interest  in  the  premises,  has  a 
right  to  redeem. 

"Holden  vs.  Dunn,  144  111.,  413,  19  L.  R.  A.,  481. 
Unger  vs.  Leiter,  32  Ohio  St.,  110. 


78  FREEHOLD   ESTATES    NOT   OF   INHERITANCE. 

So  the  wife  may,  in  some  states,  by  paying  a  proportionate 
amount  of  the  mortgage,  have  her  dower  freed  from  the  mort- 
gage lien.52  In  other  states  the  wife  in  order  to  have  her  dower 
released,  must  pay  the  entire  amount  due  under  the  mortgage. 

We  shall  afterwards  see  that  the  wife's  dower  is  subject  to 
all  claims  against  the  husband's  estate,  existing  at  the  time  of 
the  inception  of  the  wife's  rights,  viz.,  at  time  of  the  marriage. 

If,  therefore,  the  husband  prior  to  his  marriage  gave  a  mort- 
gage on  his  property,  the  wife's  dower  will  be  subject  to  the 
mortgage.  It  has  been  held  in  a  few  states  that  the  personal 
estate  of  the  husband  is  primarily  liable  for  the  mortgage  debt, 
and  if  there  is  sufficient  personalty  belonging  to  the  husband's 
estate  to  pay  the  debt,  the  wife  is  entitled  to  have  it  applied  on 
the  mortgage.53 

In  most  states  the  courts  hold  that  the  wife  by  joining  in 
the  mortgage,  thereby  subjects  her  interest  to  it  and  is  not  en- 
titled to  have  the  mortgage  paid  out  of  the  personal  estate  of 
the  husband.54 

PARTNERSHIP  LANDS. 

If  lands  are  purchased  by  partnership  funds  and  are  held 
for  partnership  purposes,  in  the  absence  of  an  agreement  that 
the  property  shall  be  held  as  personalty,  the  wife  of  a  deceased 
partner  is  entitled  to  dower,  subject,  however,  to  the  right  of 
the  creditors  of  the  partnership.55  In  other  words  partnership 

KHolden  vs.  Dunn,  144  111.,  413. 

Unger  vs.  Letter,  32  Ohio  St.,  110. 

Jennison  vs.  Hapgood,  14  Pick.,  345. 
33Boynton  vs.  Sawyer,  35  Ala.,  497. 

Mandel  vs.  McClane,  46  Ohio  St.,  407. 
"Scott  vs.  Hancock,  13  Mass.,  162. 

Hemitt  vs.  Cox,  55  Ark.,  225. 

KBopp  vs.  Fox,  63  111.,  540. 

Four  partners  purchased  land  with  partnership  funds  and  for  part- 
nership purposes.  Afterwards  the  property  was  sold  by  the  receiver 


FREEHOLD   ESTATES   NOT   OF   INHERITANCE.  79 

real  property  must  first  be  applied  to  the  payment  of  partner- 
ship debts;  and  the  widow  of  a  partner  is  not  entitled  to  have 
her  dower  assigned  until  the  partnership  debt.3  are  paid.56 
During  the  continuance  of  the  partnership,  the  partners  can 
convey  the  partnership  real  property  for  partnership  purposes, 
free  from  any  claim  of  inchoate  dower.57 

For  most  purposes,  partnership  real  property  is  treated  as 
personalty;  but  after  the  partnership  purposes  have  been 
accomplished,  the  real  property  is  treated  as  realty  and  is 
subject  to  dower.58 

It  has  been  held  that  the  partners  may  agree  that  the  real 
property  shall  be  treated  as  personalty,  not  only  as  between 
themselves,  but  as  between  their  heirs.  Under  such  an  agree- 
ment the  wife  of  a  partner  wrould  not  be  entitled  to  dower,  even 
after  the  payment  of  partnership  debts.59 

IMPROVEMENTS. 

When  the  husband  dies  seised  of  the  land,  the  wife's  claim 
of  dower  extends  to  the  buildings  and  improvements  on  the 
land.  If  the  husband,  previous  to  his  death,  conveyed  the 

of  the  partnership  on  an  order  of  the  court,  and  on  such  sale  was  bought 
in  by  defendant. 

Bopp,  one  of  the  partners,  subsequently  died,  and  his  widow  filed 
this  petition  in  equity  for  the  assignment  of  dower,  claiming  a  right 
of  dower  in  one-fourth  of  the  real  property  purchased  by  the  partner- 
ship. 

The  court  held  that  although  one-fourth  of  the  title  to  the  land 
vested  in  petitioner's  husband,  yet  he  never  had  any  beneficial  interest 
in  it,  distinct  from  partnership  purposes,  but  that  he  took  it  clothed 
with  an  implied  trust  that  it  should  be  applied  to  the  payment  of  part- 
nership debts,  if  necessary,  and  that  his  widow  was  not  entitled  to 
dower  until  this  trust  was  fully  executed  and  fulfilled,  and  the  interest 
of  Louis  Bopp  having  been  applied  to  the  purpose  of  the  implied  trust 
upon  which  it  was  taken,  the  widow  was  not  entitled  to  dower. 

"Espy  vs.  Comer,  76  Ala.,  501. 
Free  vs.  Beatley,  95  Mich.,  426. 

"Woodward-Holmes  Co.  vs.  Nudd,  58  Minn.,  236,  27  L.  R.  A.,  340. 

58Wood  ward-Holmes  Co.  vs.  Nudd  (ante). 

Term  vs.  Megibben,  53  Fed.  Rep  86. 
Greene  vs.  Greene,  1  Ohio,  535 


SO  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

land  without  his  wife  joining  in  the  deed,  and  improvements 
are  made  by  the  husband's  grantee,  the  wife  will  only  be  en- 
titled to  dower  in  the  value  of  the  land,  less  the  value  of 
improvements  made  since  the  time  of  the  conveyance  by  the 
husband.  Improvements  made  ,by  an  heir  or  persons  other 
than  the  husband's  grantee,  are  made  at  the  risk  of  the  per- 
sons making  them,  and  the  widow  will  be  entitled  to  dower  in 
them.60 
MINERAL  LANDS. 

At  the  common  law  a  wife  was  dowable  of  mines  which 
were  open  at  the  time  of  the  husband's  death;  but  she  could 
not  open  new  mines  even  upon  the  portion  assigned  to  her 
for  her  dower.61 

This  rule  excluding  the  wife's  dower  in  unopened  mineral 
deposits  seems  to  have  been  adopted  in  many  states.  In 
Michigan  the  statutes  give  to  the  widow  of  every  deceased  per- 
son "the  use  during  her  natural  life  of  one-third  of  all  the  lands 
whereof  her  husband  was  seised." 

In  the  case  of  In  Re  Seager  Estate,  the  question  arose 
whether,  under  this  statute,  a  wife  had  dower  in  mineral  de- 
posits undeveloped  at  the  time  of  the  husband's  death.  In 
a  careful  and  learned  decision,  in  which  all  the  decisions  are 
reviewed  by  Mr.  Justice  Grant,  the  Court  held  that  the  stat- 
ute was  intended  to  include  all  the  land  of  the  husbaqd,  "irre- 
spective of  whether  mines  were  opened  upon  them  before  or 
after  the  husband's  death.''62 

LAND  SOLD  ON  CONTRACT. 

Where  the  husband  contracts  to  purchase  land,  and  the 
contract  provides  that  the  fee  shall  not  pass  until  all  payments 

•"Larrowe  vs.  Beam,  10  Ohio,  498. 
"Freer  vs.  Stotenbur,  36  Barb.,  641. 

Clift  vs.  Clift,  87  Tenn.,  17. 
'-In  re  Seager  Estate,  92  Mich..  186,  16  L.  R.  A.,  247. 


FREEHOLD   ESTATES   NOT   OF   INHERITANCE.  81 

have  been  made,  the  wife  will  not  be  entitled  to  dower  until 
the  husband  acquires  the  legal  title,  or,  in  some  states,  in 
which  dower  is  given  in  equitable  estates,  until  he  acquires 
the  equitable  title.63 

Possession  without  a  legal  or  equitable  interest  under  an 
executory  land  contract  will  not  give  dower. 

THE  WIFE'S  CLAIM  OF  DOWER  IS  SUBJECT  TO  ALL  THE 
ENCUMBRANCES,  CLAIMS  AND  EQUITIES  EXISTING  AGAINST 
THE  HUSBAND'S  ESTATE  AT  THE  TIME  OF  THE  MARRIAGE. 

It  follows  that  if  the  husband,  previous  to  his  marriage, 
entered  into  a  contract  to  convey  the  property,  the  wife's 
right  of  dower  will  be  subject  to  all  equities  and  rights  of  the 
vendee;  and  the  vendee  on  performing  the  conditions  of  the 
contract  will  take  the  property  free  from  any  claim  of  dower.64 

As  betwreen  the  husband's  heirs  or  personal  representatives 
and  the  w;ife,  the  latter  may,  under  some  circumstances,  have 
dower  in  the  interest  of  the  husband  in  the  land  sold  on  con- 
tract, when  it  does  not  prejudice  the  rights  of  the  vendee,  and 
when  the  contract  has  not  been  performed  during  the  life  of 
the  husband. 

For  instance,  if  the  husband,  previous  to  his  marriage,  en- 
tered into  a  contract  to  sell  land,  and  if  he  subsequently 
marries  and  dies,  leaving  a  widow,  and  at  the  time 
of  his  death  there  is  something  due  on  the  contract,  the 
question  arises  as  to  the  dower  right  of  the  wife  in  the  unpaid 
portion  of  the  contract.  In  such  a  case  it  will  be  noticed  that 
the  husband  still  has  the  legal  title  to  the  property,  and,  while 
it  may  be  contended  that  he  holds  it  in  trust  for  the  vendee  in 
the  contract,  yet  he  has  a  beneficial  interest  equal  to  the  un- 
paid portion  of  the  contract. 

"Hunkins  vs.  Hunkins,  65  N.  H.,  95. 
"McClure  vs.  Fairfield,  153  Pa    St..  411. 


82  FBEEHOLD   ESTATES    NOT   OF   INHERITANCE. 

An  interesting  case  as  to  the  right  of  the  wife  in  this 
beneficial  interest  arose  in  Michigan.  Henry  P.  Pulling,  prior 
to  his  marriage,  entered  into  a  contract  to  sell  nine  pieces  of 
property  for  an  aggregate  consideration  of  $49,000.  He  sub- 
sequently married  and  at  the  time  of  his  death  there  was  still 
due  on  the  contracts  the  sum  of  $45,000. 

The  -wife  petitioned  to  have  dower  assigned  her  in  the  in- 
terest in  the  land,  represented  by  the  unpaid  portion  of  the 
contract. 

The  court  held  that  even  though  a  trust  in  the  vendor  for 
the  benefit  of  the  vendee  be  implied,  it  was  one  coupled  with  a 
beneficial  interest,  and  under  the  ruling  that  a  wife  of  a  trustee 
is  entitled  to  dower  commensurate  with  the  husband's  interest, 
the  court  held  that  the  wife  was  entitled  to  dower  in  the 
interest  of  the  husband  at  the  time  of  his  death,  and  that  while 
dower  could  not  be  assigned  out  of  the  land  the  wife  should 
have  a  sum  in  lieu  thereof.  This  case  does  not  conflict  with 
the  rule  that  the  wife's  dower  is  subject  to  the  equities  and 
rights  of  a  vendee  prior  to  the  marriage;  for  it  was  not  sought 
to  affect  the  purchaser's  interest,  but  the  interest  held  by  the 
husband  at  the  time  of  his  death.65 

•If  the  contract  for  sale  is  made  during  coverture  and  the 
wife  does  not  sign,  her  dower  will  not  be  affected.  If  the  wife 
joins  in  the  contract,  she  may  be  compelled  to  release  her  dower 
on  the  fulfillment  of  the  terms  of  the  contract. 

MONEY. 

When  land  in  which  the  wife  has  a  valid  claim  of  dower  is 
converted  by  a  judicial  proceeding  into  money,  the  character 
of  the  land  is  impressed  upon  the  fund  and  the  wife's  right  of 
dower  is  still  recognized  and  protected.60 

""Pulling  vs.  Pulling,  97  Mich..  875. 
'•"Wheeler  vs.  Kirtlanci.  27  N.  J.  Eq..  324. 
Holden  vs.  Dunn,  144  111.,  413.  10  I..  R.  A..  4S1. 


FREEHOLD   ESTATES    NOT   OF   INHERITANCE.  83 

WILD  LANDS. 

In  some  states  it  has  been  held  that  the  widow  is  not 
entitled  to  dower  in  wild  lands.  The  cases  holding  this  view 
are  based  on  the  reasoning  that  dower  was  intended  for  benefit 
of  the  widow,  and  there  being  no  rents  or  profits  from  such 
lands,  dower  would  only  be  a  clog  upon  the  transfer  of  the 
property,  without  any  corresponding  benefit  to  the  widow.97 

3.     DEATH  OF  THE  HUSBAND. 

At  the  common  law  the  wife's  right  to  dower  became  con- 
summate on  the  death  of  her  husband.  A  civil  death  of  the 
husband  was  not  sufficient  to  vest  the  wife's  right  to  dower. 
In  some  states  the  wife's  right  becomes  consummate  on  divorce 
granted  the  wife  for  the  fault  of  the  husband.  In  some  states 
where  the  husband  has  been  absent  and  unheard  of  for  a 
certain  number  of  years,  he  is  presumed  to  be  dead,  and  his 
wife  may  have  her  dower  assigned.68 

We  have  seen  that  from  the  time  of  the  marriage,  or,  of  the 
seisin  of  the  husband,  up  to  the  time  of  the  husband's  death, 
the  wife's  right  is  inchoate;  and  that  on  the  death  of  the  hus- 
band, this  inchoate  dower  becomes  consummate. 

There  is  yet  another  stage:  The  consummate  right  of  the 
wife  to  dower  develops  into  a  freehold  estate  when  specific 
property  is  set  apart  to  her.  Th.e  act  of  setting  apart  this 
specific  portion  is  known  in  the  law  as  an  assignment  of  dower. 

We  will  briefly  consider  the  widow's  rights  in  each  of  these 
stages : 

INCHOATE  DOWER. 

As  soon  as  there  is  a  concurrence  of  marriage  and  seisin 
in  the  husband,  if  the  other  essentials  exist,  the  wife  has  a  con- 
dormer  vs.  Shepherd,  15  Mass.,  164. 

Contra,  Schuelley  vs.  Schuelley,  26  111.,  116. 
'"Sherod  vs.  Ewell,  73  N.  W.,  493. 


84  FREEHOLD   ESTATES    NOT   OF   INHERITANCE. 

tingent  and  uncertain  interest  which  cannot  be  barred  or  de- 
feated by  the  husband.  This  inchoate  right  cannot,  at  this 
stage,  be  said  to  be  a  chose  in  action;  for  it  is  contingent  on 
future  events,  such  as  the  survivorship  of  the  wife.  This  con- 
tingent interest  of  the  wife  has  many  of  the  attributes  of 
property;  it  is  capable  of  being  valued;  it  may  be  a  sufficient 
consideration  to  support  an  agreement  or  a  conveyance  of 
property;60  and  the  wife  may  maintain  an  action  to  protect  it. 

Thus,  if  the  husband,  prior  to  his  marriage,  without  the 
knowledge  of  his  intended  wife,  and  with  the  intent  to  defeat 
her  dower,  conveys  the  property  to  another,  the  wife  may  even, 
during  the  life  of  the  husband,  maintain  an  action  to  have  such 
conveyance  adjudged  to  be  fraudulent  and  void,  as  against  her 
right  to  dower.70  This  inchoate  right  has  not  all  the  attributes 
of  property.  It  may  not  be  sold  or  conveyed  to  a  stranger  to 
the  title,  it  may,  however,  be  released  to  one  who  has  an  inde- 
pendent interest  in  the  land.71  Neither  can  such  interest  be 
affected  by  the  statute  of  limitations,  or  be  taken  on  an  execu- 
tion against  the  wife.72 

The  right  of  the  wife  at  this  stage  is  not  an  estate,  nor  has 
she  a  vested  interest.  As  a  consequence,  her  interest  may  be 
modified  or  entirely  abolished  by  legislative  enactment.73  And 
the  law  at  the  time  of  the  husband's  death  and  not  the  law  at 
the  inception  of  the  inchoate  right  of  dower  determines  the 
wife's  rights  in  the  husband's  property.74 

"Mandel  vs.  McClave,  46  Ohio  St.,  407,  5  L.  R.  A.,  519. 

Gore  vs.  Townsend,  105  N.  Y.,  228,  8  L.  R.  A.,  443. 
"Dudley  vs.  Dudley,  76  Wis.,  567,  8  L.  R.  A.,  814. 

Murray  vs.  Murray,  90  N.  Y.,  8  L.  R.  A.,  95. 
"Hart  vs.  Burch,  130  111.,  426. 

See  post  page  89. 

"McMahon  vs.  Gray,  150  Mass.,  89. 
"Jourdan  vs.  Haran,  3  N.  Y.  S.,  541. 
"Hatcher  vs.  Buford,  60  Ark.,  169,  27  L.  R.  A.,  507. 


FREEHOLD    ESTATES    NOT    OE    INHERITANCE.  85 

It  is  settled  that  inchoate  dower  is  an  inciunbrance  on  the 
land  and  comes  within  a  covenant  against  incumbrances.75 
Tke  inchoate  right  of  dower  does  not  confer  seisin,  or  a  right 
to  possession. 

CONSUMMATE  DOWER. 

On  the  death  of  the  husband  the  wife's  uncertain  and  con- 
lingent  interest  becomes  certain,  and  fixed.76  Being 
then  absolute  and  vested,  her  interest  cannot  be  impaired  by 
legislation.  It  is  a  chose  in  action,  entitling  the  wife  to  have 
certain  of  her  husband's  land  set  aside  to  her.77  The  wife  has 
not  yet  acquired  an  estate;  she  has  simply  an  absolute  right 
to  have  an  estate  assigned  to  her.  This  right  does  not  entitle 
her  to  enter  into  possession  of  her  husband's  land  (e),  and  she 
may  be  held  guilty  of  trespass  as  against  the  husband's  alienee 
by  an  entry  before  her  dower  has  been  assigned  (d). 

At  the  common  law  the  widow  was  entitled  to  occupy  the 
principal  mansion  of  her  husband,  and  to  be  supported  therein 
for  a  period  of  forty  days.  This  right  of  the  widow  is  known 
as  quarantine.75  The  right  of  possession  given  to  the  widow 
as  quarantine,  is  not  an  incident  of  consummate  dower. 

At  the  common  law,  the  widow  could  not  sell  and  convey 
her  consummate  right  to  a  stranger  to  the  title;70  but  as  in 
the  case  of  inchoate  dower,  she  might  release  it  to  one  having 


"Shearer  vs.  Ranger,  22  Pick.,  447. 
"Motley  vs.  Motley,  73  N.  W.,  738. 
TTRaynor  vs.  Lee,  20  Mich.,  384. 

(d)  Tucker  vs.  Tucker,  45  S.  W.,  344. 

(e)  McMahon  vs.  Gray,  150  Mass.,  289,  5  L.  R.  A.,  748. 

"The  right  of  quarantine  has  been  extended  in  many  states.      In 
some  states  the  right  continues  until  dower  is  assigned. 
(2)  Payne  vs.  Becker,  87  N.  Y.,  153. 

"Weaver  vs.  Rush  (Ark.),  34  S.  W.,  256;  Hart  vs.  Burch,  130  111., 
426,  6  L.  R.  A.,  391;  Salem  Nat.  Bank  vs.  White,  159  111.,  136.  A 
widow  cannot  lease  her  dower  interest  until  it  has  been  as- 
signed to  her.  Union  Brewing  Co.  vs.  Meier,  45  N.  E.,  264. 


86  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

an  interest  in  the  property.  In  equity  a  conveyance  to  a 
stranger  to  the  title  will  be  enforced.  Being  a  mere  chose  in 
action,  consummate  dower  at  common  law  is  not  subject  to  be 
taken  on  a  writ  of  execution,  but  it  may  now  be  reached  in 
equity  by  the  widow's  creditors.80  In  some  states  the  widow 
is  now  permitted  by  statute  to  convey  her  dower  before  its 
assignment,  to  a  stranger  to  the  title. 

The  statute  of  limitations  begins  to  run  against  the  widow 
from  the  time  that  the  right  to  the  assignment  accrues,  viz., 
the  death  of  the  husband. 

ASSIGNED  DOWER. 

When  there  is  assigned  to  the  widow  a  speciilc  portion  of 
land  for  her  use  and  enjoyment,  her  right  to  dower  develops 
into  a  freehold  estate  for  life,  except  where  statutes  give  her 
an  estate  in  fee  simple.  She  is  now  seized  of  an  estate  and  is 
entitled  to  possession  of  the  portion  assigned  her.  Her  estate 
has  all  the  attributes  of  a  life  estate;  she  may  alien  it,  lease  it 
and  deal  with  it  as  any  other  life  tenant.  She  is  also  liable  in 
the  same  way  as  other  life  tenants,  as  for  waste,  payment  of 
taxes  and  interest  on  incumbrances,  etc. 

ASSIGNMENT  OF  DOWER. 

Dower  may  be  assigned  voluntarily  by  the  acts  of  the 
parties  or  by  legal  proceedings.  At  the  common  law  on  the 
death  of  the  husband  if  he  left  a  widow,  it  became  the  duty  of 
the  heir  or  owner  of  the  freehold  to  set  aside  her  dower.  If 
the  heir  was  an  infant,  his  guardian  could  make  the  assign- 
ment. 

If  this  duty  were  performed  fairly,  it  was  binding  upon  the 
widow,  and  she  became  entitled  to  a  life  estate  in  the  portion 
assigned  to  her. 

"McMahon  vs.  Gray,  150  Mass.,  289,  5  L.  R.  A.,  748. 


FREEHOLD    ESTATES    NOT    OF    INHERITANCE.  87 

In  most  of  the  states  the  statutes  provide  that  the  assign- 
ment of  the  tenant  shall  not  be  binding  upon  the  widow,  unless 
it  be  accepted  by  her. 

This  assignment  need  not  be  in  writing;  for  the  widow's 
estate  is  not  created  by  the  act  of  assignment,  but  arises  out 
of  the  marriage  relation. 

If  the  person  upon  whom  the  duty  of  making  the  assign- 
merit  neglects  to  do  so  the  widow  may  enforce  her  rights  by 
legal  proceedings.  The  statutes  of  the  different  States  pro- 
vide different  legal  proceedings. 

At  common  law  the  widow's  remedy  was  l,y  writ  of  dower, 
unde  nihil  habet,  or  by  writ  of  right  of  dower,  or,  she  might 
have  her  dower  assigned  by  courts  of  equity.  In  addition  to 
these,  or  equivalent  methods  of  assigning  dower,  the  statutes 
usually  provide  that  if  the  tenant  neglects  to  assign  dower  for 
a  certain  period,  the  widow  may  commence  summary  proceed- 
ings in  probate  or  surrogate  courts. 

In  some  states  the  widow  must  make  a  demand  before  com- 
mencing legal  proceedings;  in  other  states  a  demand  is  not 
necessary.  The  widow's  right  to  dower  extends  to  each  piece 
of  real  property  of  which  her  husband  was  seized  during  cover- 
ture. When  dower  is  assigned  to  her  in  each  piece  by  metes 
and  bounds,  it  is  in  accordance  with  her  right  and  is  said  to 
be  an  assignment  by  common  right. 

It  sometimes  happens  that  it  is  not  practicable  or  desirable 
to  set  apart  a  portion  of  each  piece  of  property  to  the  widow, 
and  she  is  given  some  other  property  in  lieu  of  her  share  in 
any  particular  piece  or  pieces;  such  an  assignment  has  been 
said  to  be  contrary  to  or  against  the  common  right.81  It  was 
a  rule  of  the  common  laAV  that  in  all  cases  when  it  was  pos- 
sible dower  should  be  assigned  to  the  widow  by  metes  and 
bounds. 

"Hogg  vs.  Hensley  (Ky.),  39  S.  W.,  247. 


88  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

• 

In  computing  what  portion  the  widow  shall  take  in  lieu  of 
her  dower  in  the  property,  the  quality  as  well  as  the  quantity 
of  the  property  in  which  she  is  entitled  to  dower,  should  be 
taken  into  consideration,  and  such  part  should  be  assigned  as 
will  yield  one-third  of  the  entire  revenue  of  the  whole.82  Where 
the  property  is  incorporeal  or  is  of  such  a  nature  that  it  can- 
not be  fairly  divided  by  metes  and  bounds,  the  widow  is  en- 
titled to  dower  out  of  the  rents  and  profits.  Thus,  where  the 
property  consists  of  a  hotel  or  mill,  the  widow  is  entitled  to  a 
portion  of  the  rents  or  profits.  It  is  competent  for  the  parties 
to  agree  that  a  certain  sum  shall  be  assigned  to  the  widow 
in  lieu  of  dower,  and  such  an  agreement  will  be  enforced  by 
the  courts.83. 

As  a  general  rule  dowrer  is  to  be  computed  on  the  value  of 
the  property  at  the  time  of  the  assignment.  To  this  rule  there 
is  an  exception.  Where  the  husband  conveyed  the  land  and 
the  wife  did  not  join  in  the  conveyance  and  his  grantee  has 
made  improvements,  dower  is  to  be  fixed  by  the  value  of  the 
land  at  the  time  of  its  alienation,  and  not  at  the  time  of  the 
assignment.84 

In  some  states  the  widow's  dower  as  against  her  husband's 
grantee  is  fixed  on  the  value  of  the  land  at  the  time  of  the 
assignment,  less  the  value  of  the  improvements  made  by  the 
grantee.  Under  this  rule  the  widow  participates  in  any  in- 
crease of  the  value  of  the  land  from  any  other  cause  than  im- 
provements made  by  the  grantee.85 

HOW  BARRED  OR  DEFEATED. 

Dower  may  be  barred  Or  defeated  in  the  following  ways: 

(1)     BY  ACT  OF  THE  WIFE. 

-King  vs.  Merritt,  67  Mich..  194. 
""Hart  vs.  Burch,  130  111.,  426,  6  L.   R.  A..  371. 
84Butier  vs.  Fitzgerald,  43  Neb..  192.  27  L.  R.  A..  252. 
"McClanabaa  vs.  Porter,  10  Mo..  74f.. 
See  also  Sanders  vs.  McMillan.  98  Ala..  144. 


FREEHOLD    ESTATES    NOT   OF    INHERITANCE.  89 

(a)     BY  RELEASE. 

The  most  common  method  of  defeating  dower  is  by  the 
wife  joining  in  the  deed,  mortgage  or  contract  of  her  husband. 
Most  of  the  statutes  provide  that  the  wife  may  release  her 
dower  by  joining  in  a  deed  with  her  husband.  In  some  states 
she  may  release  it  by  a  sole  deed.86  As  a  general  rule  the  wife 
cannot  release  her  dower  to  a  stranger.87;  it  must  be  released 
to  someone  having  title  or  in  privity  with  the  title.  The  re- 
lease of  the  wife  is  really  not  a  conveyance  of  her  interest, 
which,  as  we  have  seen,  cannot  be  transferred ;  but  her  release 
operates  as  an  estoppel  and  prevents  a  subsequent  claim  for 
dower,  and  being  an  estoppel  it  can  be  taken  advantage  of 
only  by  those  holding  title  to  the  property.88 

Thus,  where  a  wife  joins  with  her  husband  in  the  execu- 
tion of  a  mortgage  upon  land  in  which  she  has  an  inchoate 
right  of  dower  and  in  such  mortgage  released  her  dower 
therein,  it  was  held  that  such  release  was  not  absolute  but 
conditional,  and  that  she  could  not  be  divested  of  her  dower 
by  reason  of  such  release,  except  by  a  sale  under  a  decree  of 
foreclosure.89 

86Martin  vs.  Martin,  32  Ala.,  66. 
87Harriman  vs.  Gray,  49  Me.,  537. 

88Harriman  vs.   Gray,  49  Me.,  537. 

Plaintiff  was  wife  of  Jacob  Harriman,  and  claimed  dower  in  prop- 
erty conveyed  by  him,  in  which  conveyance  she  did  not  join. 

Jacob  Harriman,  on  the  23rd  day  of  October,  1823,  quit-claimed  the 
property  to  one  James  Harriman  by  a  deed  containing  no  covenants, 
and  from  said  Harriman  the  title  passed  through  a  number  of  con- 
veyances to  the  defendant. 

The  defendant  claimed  to  bar  plaintiff's  right  of  dower  by  reason 
of  her  release  to  said  Jacob  Harriman,  dated  April  2nd,  1838.  At  the 
time  of  this  release  Jacob  Harriman  was  hot  the~bwner  of  the  property, 
the  title  having  long  since  passed  to  those  under  whom  defendant 
claimed. 

The  court  held  that  Jacob  having  no  interest  in  the  property  at 
the  time  of  the  attempted  release,  the  release  of  dower  was  to  a 
stranger,  ami  of  no  effect. 

It  was  held  that  while  defendant  would  he  estopped  as  be- 
tween herself  and  Jacob  Harriman.  the  release  did  not  inure  to  his 
grantees. 

""Roan  vs.  Holmes,  32  Fla.,  295,  21  L.  R.  A.,  180. 


90  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

If  the  deed  of  the  husband  in  which  the  wife  joins  be  set 
aside  as  fraudulent,  or  becomes  inoperative,  the  wife's  right  of 
dower  revives.90 

At  the  common  law  the  wife  could  not  release  her  dower 
to  her  husband,  and  this  is  still  the  general  rule.  In  some 
states  a  release  by  the  wife  to  the  husband  for  a  fair  consid- 
eration will  be  enforced.91  The  form  of  the  release  by  the  wife 
must  comply  with  the  requisites  required  by  the  statute,  for  at 
the  common  law  the  wife  could  not,  during  her  husband's  life, 
release  her  dower  except  by  levying  a  fine  or  suffering  a  com- 
mon recovery.  As  a  general  rule  the  deed  must  contain  apt 
words  of  release  of  the  dower  interest;  a  joinder  of  the  wife 
with  the  husband  in  signing  a  deed  which  does  not  contain 
words  of  release,  will  not  bar  her  dower.92  A  contrary  rule 

"Hincliffe  vs.  Shea,  1O3  >.  Y.,  153. 

In  1874,  Martin  Shea  was  the  owner  of  certain  property,  and  in 
that  year  a  judgment  was  obtained  against  him  and  it  became  a 
valid  lien  against  the  property.  In  1878,  Shea  and  his  wife  gave  a 
mortgage  on  the  property.  At  the  time  of  making  the  mortgage,  Mrs. 
Shea  had  no  interest  in  the  property,  except  an  inchoate  right  of 
dower.  In  1880,  the  premises  were  sold  under  the  judgment  of  1874 
to  a  third  person,  who  thereby  acquired  a  title  paramount  to  and 
which  subverted  and  destroyed  the  mortgage.  Subsequently,  the 
purchaser  at  the  execution  sale  conveyed  the  property  to  Margaret 
Shea,  and  complainant  then  filed  this  bill  to  foreclose  the  mortgage. 
The  court  held  that  the  judgment  of  the  lower  court  subjecting  the 
widow's  dower  to  the  mortgage  must  be  reversed. 

It  was  held  that  the  effect -of  the  signing  of  the  mortgage  was 
not  a  conveyance  of  the  right  of  inchoate  dower,  but  was  a  release 
to  the  mortgagee  in  aid  of  the  title  acquired  from  the  husband,  and 
precluded  her  from  afterwards  claiming  dower  in  the  premises  as 
against  the  grantee  of  the  mortgagee,  so  long  as  there  remained  a 
subsisting  title  or  interest  created  by  the  mortgage,  but,  that  when 
the  title  created  by  the  husband  was  avoided  or  ceased  to  operate 
by  the  sale  under  the  execution,  the  wife  was  restored  to  her  original 
situation  and  was  entitled  to  dower  as  though  she  had  never  signed 
the  mortgage,  and  that  therefore  her  dower  interest  in  the  property 
was  not  subject  to  the  mortgage. 

See  Malloney  vs.  Horan,  49  N.  Y.,  111. 

Bohanon  vs.  Combs,  97  Mo.,  446. 
"Wright  vs.  Wright,  79  Mich.,  527. 
KGreenough  vs.  Twiner,  77  Mass.,  334. 

Call  vs.  Wells,-  7  Blackf.   (Ind.),  410. 

Lathrop  vs.  Froster,  51  Mo.,  367. 


FREEHOLD   ESTATES    NOT   OF   INHERITANCE.  91 

prevails  in  a  few  states,  and  in  such  states  a  mere  joining  in  a 
deed  is  sufficient  to  bar  dower. 

In  some  states  the  statutes  require  that  the  wife  shall 
acknowledge  her  signature  before  an  officer,  and  that  she  shall 
be  examined  apart  from  her  husband.  The  wife's  dower  right 
beiog  an  inteEest  in  real  property  cannot  be  released  by  parol. 

(b)     BY  ESTOPPEL  IN  PAIS. 

The  widow  may  by  her  acts,  after  the  death  of  the  husband, 
be  estopped  from  claiming  dower. 

The  estoppel  must  consist  of  some  act  or  acts  on  the  part  of 
the  widow  which  would  be  inconsistent  with  her  claim  of 
dower.  Thus,  where  the  widow  was  present  at  a  sale  of  her 
husband's  property  and  stated  that  she  would  not  claim  dower, 
it  was  held  that  she  was  estopped  from  claiming  dower  in  the 
property  sold.92  In  some  States  it  has  been  held  that  the 
widow  by  attendance  at  the  sale  of  her  husband's  property 
and  by  remaining  silent,  was  estopped  to  claim  dower.93  The 
weight  of  authority  seems  to  be  against  this  ruling,  and  the 
better  rule  is  that  the  wife  will  not  be  estopped  by  mere  si- 
lence, but  only  by  some  affirmative  act  or  declaration.94  It 
has  generally  been  held  that  during  the  life  of  the  husband  the 
acts  of  the  wife  will  not  estop  her  from  claiming  dower  except 
by  a  properly  executed  release.95  Thus  it  was  held  that,  where 
a  married  man  sold  land  but  his  wife  did  not  join  in  the  deed, 
she  was  not  estopped  to  assert  after  his  death,  a  claim  for 
dower  by  the  mere  fact  that  she  knew  of  the  sale  and  made  no 
objection  thereto  during  coverture.90  So,  where  a  wife  knew 

82Sweany  vs.  Mallory,  62  Mo.,  485. 
'"Smiley  vs.  Wright,  2  Ohio,  511. 
M0wen  vs.  Slatter,  26  Ala.,  547. 

Motley  vs.  Motley,  73  N.  W.,  738. 
"Martin  vs.  Martin,  22  Ala.,  86. 
""Madson  vs.  Madson  (Minn.),  71  N.  W.,  824. 


92  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

that  her  husband  was  living  with  another  woman  and  knew 
that  such  woman  believed  herself  to  be  lawfully  married,  it  was 
held  that  the  wife  was  not  estopped  to  claim  dower  by  her 
failure  to  notify  the  alleged  wife  that  she  was  the  lawful  wife 
of  her  supposed  husband.07  And  the  same  ruling  was  made  in 
a  case  in  which  the  wife  consented  to  her  husband  living  with 
another  woman  as  his  wife.98 

(c)  BY  ABANDONMENT  AND  ADULTERY. 

At  the  common  law  the  abandonment  of  her  husband  and 
adultery  on  the  part  of  the  wife  was  not  a  bar  to  dower."  By 
the  statute  of  Westminster  the  voluntary  abandonment  or 
elopement  followed  by  adultery  on  the  part  of  the  wife  was 
enacted  to  be  a  bar  to  dower.  This  statute  has  been  followed 
by  the  statutes  of  many  States;100  in  some  States  it  has  been 
recognized  as  a  part  of  the  common  law.101  As  a  general  rule, 
the  abandonment  of  the  husband  without  adultery  will  not  bar 
dowrer.  In  some  States  the  adulterous  elopement  must  be  fol- 
lowed by  a  divorce,  in  order  to  bar  dowrer.102  In  order  that  the 
acts  of  the  wife  should  bar  her  dower,  they  must  be  such  as  to 
bring  her  within  the  provisions  of  the  particular  statute  in 
operation  wrhere  the  property  is  situated.  Thus,  it  was  held 
that  the  adultery  on  the  part  of  the  wife  without  elopement 
did  not  bring  her  within  the  statute.103  It  has  also  been  held 
that  where  the  husband  and  wife  separated  and  she  subse- 
quently committed  adultery  her  dower  was  not  barred.104 

"'Dunn  vs.  Portsmouth  Savings  Bank,  72  N.  W.(  687. 
9SCazier  vs.  Hinchey,  44  S.  W.,  1052. 
"McClanchan  vs.  Porter,  10  Mo.,  746. 

See  also  Sanders  vs.  McMillan,  98  Ala.,  144. 
100Goss  vs.  Froman,  89  Ky.,  218,  8  L.  R.  A.,  102. 
101Price  vs.  Hobbs,  47  Md.,  359. 
102Lakin  vs.  Lakin,  84  Mass.,  45. 

Reynolds  vs.  Reynolds,  24  Wend  (N.  Y.),  193. 
'""Cogswell  vs.  Tibbetts,  3  N.  H.,  41, 
101Goss  vs.  Froman,  89  Ky.,  318. 


FREEHOLD    ESTATES    NOT   OF    INHERITANCE.  93 

2.     BY  ACT  OF  THE  HUSBAND. 

In  some  States  the  wife  has  dower  only  in  the  land  of  which 
the  husband  was  seized  at  the  time  of  his  death.  In  these 
States  the  husband's  conveyance  of  the  land  will  bar  his  wife's 
dower.  In  order  to  have  this  effect,  the  husband's  conveyance 
must  be  made  in  good  faith  and  not  for  the  purpose  of  defeat- 
ing his  wife's  dower.105  In  those  States  where  the  wife  has 
dower  in  the  property  of  which  the  husband  was  seized  during 
coverture,  the  husband  can  not  in  any  way  bar  the  wife's  claim 
of  dower.  This  is  true,  even  though  the  husband  acted  fraud- 
ulently, if  his  acts  do  not  determine  his  estate.  So  it  was  held, 
where  a  husband  represented  himself  to  be  unmarried  and 
thereby  induced  a  third  person  to  purchase  the  property,  the 
wife  was  still  entitled  to  dower.106  The  wife's  dower  is  superior 
to  claims  against  her  husband's  estates  by  his  acts  during  cov- 
erture in  which  she  did  not  join.107 

If  the  husband  conveys  the  property,  the  possession  by  his 
grantee  for  the  period  required  by  the  statute  of  limitations, 
will  not  defeat  the  wife's  dower,  since  the  statute  does  not 
commence  to  run  against  the  wife  until  her  right  of  action 
accrues.108 

So  a  sale  of  the  husband's  interest  on  an  execution  which 
became  a  charge  on  the  land  subsequent  to  the  marriage  will 
not  bar  dower;109  neither  will  the  foreclosure  of  a  mortgage 
given  by  the  husband  during  coverture  in  which  the  wife  did 


'"Miggitts  vs.  Jiggitts,  40  Miss.,  718. 

Brandon  vs.  Damson,  51  Mo.  App.,  237. 
10liMcLanahan  vs.  Griffin,  168  111.,  31. 
I07Miller  vs.  Farmers'  Bank  (S.  C.),  27  S.  E.,  514. 
""Winters  vs.  Deturk,  133  Pa.,  359,  7  L.  R.  A.,  658. 

Williams  vs.  Williams,  89  Ky.,  381,  6  L.  R.  A.,  637. 
108Roan  vs.  Holmes,  32  Fla.,  295,  21  L.  R.  A.,  180. 

Butler  vs.  Fitzgerald,  43  Neb.,  192,  27  L.  R.  A.,  252. 

Ridgway  vs.  Masting,  23  Ohio  St.,  294. 


94  FREEHOLD   ESTATKS    NOT   OF   INHERITANCE. 

act  join.110  If  the  husband  sold  land  during  the  coverture  on 
contract  which  his  wife  did  not  sign,  she  cannot  be  compelled 
to  release  her  dower.111 

3.  BY  THE  ACT  OF  THE  LEGISLATURE. 

During  the  lifetime  of  the  husband,  the  wife's  right  in  his 
property,  is  inchoate  and  not  vested;  and  it  is  competent  for 
the  legislature  to  modify,  limit,  or  abolish  it.112 

4.  BY  DIVORCE. 

We  have  seen  that  dower  arises  out  of  the  relationship  of 
husband  and  wife;  and  that,  at  the  common  law,  in  order  that 
a  woman  may  be  entitled  to  dower  this  relationship  must  exist 
at  the  time  of  the  husband's  death.  It  follows,  therefore,  that 
at  the  common  law,  an  annulment  of  the  marriage  or  a  divorce 
a  vinculo  matrimonii  operated  to  bar  dower.113  A  divorce  a 
mensa  et  thoro  since  it  does  not  dissolve  the  marriage,  is  not 
a  bar  to  dower.114 

In  many  of  the  States  the  statutes  provide  that  where  the 
divorce  is  granted  on  the  petition  of  the  wife  for  the  fault  of 
the  husband,  the  wife's  dower  shall  not  be  barred;115  and  in 
some  States  the  wife  is  entitled  to  her  dower  on  the  granting 
of  a  decree  of  divorce  on  her  petition,  the  same  as  if  her  hug- 
band  were  dead.116  A  foreign  decree  of  divorce  will  only  bar 
dower,  if  a  decree  of  divorce  rendered  for  the  same  cause 
by  a  court  of  the  State  in  which  the  land  is  situated  would 

110Gold  vs.  Ryan,  14  111.,  53. 

mSloan  vs.  Williams,  138  111.,  43,  12  L.  R.  A.,  496. 

112Hatcher  vs.  Buford,  60  Ark.,  169,  27  L.  R.  A.,  507. 

Boyd  vs.  Harrison,  36  Ala.,  533. 

Moore  vs.  Kent,  37  la.,  20. 
""Jordan  vs.  Clark,  81,  111.,  465. 

Wood  vs.  Wood,  59  Ark.,  441,  28  L.  R.  A.,  157. 
114Hokamp  vs.  Hagaman,  36  Md.,  511. 
115S.cales  vs.  Scales,  65  Mo.  App .  292. 
""Harding  vs.  Alden,  9  Me.,  140. 


FREEHOLD    ESTATES    NOT    OF    INHERITANCE.  95 

have  the  same  effect.  Thus,  it  was  held  by  the  New  York  Court 
of  Appeals  in  the  case  of  Van  Cleaf  vs.  Boems,  that  where  a 
divorce  was  -obtained  in  Illinois  by  the  husband  for  the  wife's 
desertion,  that  the  wife  was  not  barred  by  such  decree  of  dower 
in  land  situated  in  New  York  State,  sinee  in  the  latter  State 
her  dower  could  only  be  barred  by  a  decree  on  the  charge  of 
adultery.117  In  the  same  cause  the  court  intimates  that  the 
decree  of  the  Illinois  court,  in  order  to  bar  her  dower  in  New 
York,  must  bar  dower  in  the  State  in  which  it  was  rendered; 
for  a  judgment  of  a  sister  State  can  have  no  greater  effect  in 
another  State  than  in  the  State  in  which  it  was  rendered. 

A  void  decree  of  divorce  granted  to  a  wife  in  another  State 
than  the  one  in  which  the  land  is  situated,  will  not  bar  her 
claim  of  dower.118 

5.     BY  EMINENT  DOMAIN. 

The  wife's  interest  in  her  husband's  property  may  be  de- 
feated by  the  exercise  of  the  right  of  eminent  domain.  If  the 
widow's  right  is  consummate  at  the  time  the  property  is  taken, 
compensation  will  be  made  for  her  interest.  It  has  been  held, 
however,  that  while  the  condemnation  of  the  land  by  notice 
to  the  husband  alone  will  extinguish  the  inchoate  right  of 
dower  of  the  wife,  yet  that  equity  will  secure  to  the  wife  that 
part  of  the  award  which  represents  her  inchoate  dower.119 

G.     BY  DEDICATION. 

The  dedication  of  property  for  public  purposes  will  also 
defeat  the  wife's  dower,  since  the  public  use  is  not  consistent 
with  private  rights.  Thus,  the  wife  is  not  entitled  to  dower  in 

117Van  Cleaf  vs.  Boems,  133  N.  Y.,  540. 
118McCreery  vs.  Davis,  44  S.  C.,  195,  28  L.  R.  A.,  195. 
""Wheeler  vs.  Kuitland,  27  N.  J.  Eq.,  534,  but  see  Flynn  vs.  Flynn,  50 
N.  E.,  650. 


96  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

streets  which  have  been  dedicated  to  the  public  by  her  hus- 
band.120 

7.  BY  THE  DETERMINATION  OF  THE  HUSBAND'S  TITLE. 

The  termination  of  the  husband's  estate  or  his  eviction  by  a 
paramount  title  will  bar  dower.121  Thus,  it  was  held  that  the 
inchoate  right  of  dower  of  the  wife  attached  in  subordination  to 
a  lien  accompanying  the  seisin  of  the  husband,  and  that  there- 
fore, the  foreclosure  of  a  purchase  money  mortgage  during 
coverture  cut  off  the  wife's  right  of  dower,  even  though  she  did 
not  sign  such  mortgage.122  So,  if  the  husband  is  the  owner  of 
a  determinable  fee,  the  determination  of  the  husband's  estate 
will  bar  dower.  The  defeat  of  the  husband's  title  by  adverse 
possession  will  not  bar  the  widow's  dower;  since  the  statute 
does  not  run  against  her  until  her  cause  of  action  accrues  upon 
the  death  of  the  husband.123 

THE  WIFE'S  DOWER  WILL  BE  DEFEATED  BY  ANY  CLAIM, 
EITHER  IN  LAW  OR  EQUITY,  WHICH  EXISTED  BEFORE  THE 
MARRIAGE,  AND  WHICH  DEFEATS  THE  HUSBAND'S  SEI- 
SIN.15" 

8.  BY  PARTITION  SALE. 

The  wife's  dower  is  subject  not  only  to  claims  on  the  prop- 
erty existing  at  the  time  of  the  marriage  and  to  the  express 

120Geynne  vs.  Cincinnati,  3  Ohio,  24, 

Venerable  vs.  Wabash  &  W.  R.  Co.,  112  Mo.,  103,  18  L.  R.  A.,  68. 
121Toomey  vs.  McLean,  105  Mass.,  122. 
12iSeibert  vs.  Todd,  31  S.  C.,  206,  4  L.  R.  A.,  606. 
123Hart  vs.  McCallum,  28  Ga.,  478. 
Williams  vs.  Williams,  89  Ky.,  381,  6  L.  R.  A.,  637,  but  see  Winters 

vs.  Deturk,  133  Pa.  St.,  359,  7  L.  R.  A.,  658. 
"'Trustees  of  Poor  vs.  Pratt,  1O  Md.,  5. 

This  was  an  action  at  law  to  recover  dower. 

The  husband  was  seised  of  an  estate  of  inheritance  during  cover- 
ture, but  it  was  subject  at  the  time  of  his  marriage  to  a  claim  of  a 
valid  judgment.  After  the  marriage  the  property  was  sold  on  ,in 
execution  on  this  judgment  to  defendant.  The  court  held  that  the 
wife's  estate  of  dower  was  but  a  part  of  the  husband's  estate,  and. 
since  it  was  derived  from  him.  it  was  subject  to  all  incumbrances 
existing  against  his  estate  at  the  time  of  the  marriage,  and  that  the 
husband's  estate  having  been  terminated  by  a  claim  which  existed  at 
the  inception  of  the  right  of  dower,  the  wife's  dower  was  defeated. 


FREEHOLD   ESTATES   NOT   OF   INHERITANCE.  97 

conditions  attached  to  the  husband's  estate,  but  is  also  sub- 
ject to  all  the  incidents  which  the  law  attaches  to  the  particu- 
lar estate  of  which  the  husband  is  seised.  Where  the  husband 
is  seised  as  a  tenant  in  common,  the  liability  to  be  divested  of 
the  dower  right  by  a  partition  sale  Ts  an  incident  of  his  estate, 
and  on  such  sale  the  purchaser  will  take  the  property  free  from 
the  claim  of  dower  of  the  wives  of  the  co-tenants,  if  they  have 
been  made  parties  to  the  suit.123 

9.  BY  THE  STATUTE  OF  LIMITATION  AND  LACHES. 

The  statute  of  limitations  will  not  commence  to  run  against 
the  wife's  claim  of  dower  until  her  right  of  action  accrues.128 
Generally  the  statutes  provide  that  the  wife  shall  bring  her 
action  to  recover  dower  within  a  certain  time.127  In  some 
States  it  has  been  held  that  the  general  statutes  of  limitations 
apply  to  action  for  the  recovery  of  dower,  even  though  no  men- 
tion is  made  of  it  in  the  statute.128  A  contrary  rule  prevails 
in  other  States.129  In  courts  of  equity  the  wife  may  be  pre- 
cluded from  asserting  her  dower  by  laches,  even  though  the 
time  prescribed  by  the  statute  of  limitations  has  not  expired.130 

10.  BY  ELECTION. 

If  the  husband  by  his  will  makes  provision  for  his  widow, 
and  declares  that  this  provision  is  in  lieu  of  dowrer,  she  must 
elect  whether  she  will  take  dower  or  under  the  provisions 


^Haggerty  vs.  Wagner,  148  Ind.,  625,  39  L.  R.  A.,  384. 

Holley  vs.  Glover,  36  S.  C,  404,  16  L.  R.  A.,  776. 

Grenier  vs.  Klein,  28  Mich.,  12. 
126Durham  vs  Augier,  20  Me.,  242. 

Williams  vs.  Williams,  89  Ky.,  381,  6  L.  R.  A.,  637.     See  dictum 

Winters  vs.  De  Turk,  133  Pa.,  359,  7  L.  R.  A.,  658. 
'-'King  vs.  Merritt,  67  Mich.,  194. 
""Proctor  vs.  Bigelow,  38  Mich.,  282. 
'-'"Chapman  vs.  Schroeder,  10  Ga.,  321. 
13"Tuttle  vs.  Wilson,  10  Ohio,  24. 


98  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

of  the  will ;  and  if  she  elects  to  take  under  the  will,  her  dower 
will  be  barred.131  The  intent  that  the  provisions  of  the  will 
are  to  be  taken  in  lieu  of  dower  must  be  expressed  or  implied 
from  the  terms  of  the  will,  otherwise  the  wife  will  take  under 
the  provisions  of  the  will  and  dower  in  addition  to  the  inter- 
est devised  or  bequeathed  in  the  will.132  The  rule  is  a  result  of 
the  general  favor  with  which  the  courts  regard  dower. 

The  intent  of  the  testator  that  the  provisions  in  the  will,  is 
to  be  in  lieu  of  dower  cannot  be  inferred  by  the  courts  from 
the  extent  of  the  provision,  or,  because  she  is  devisee  under  the 
will  of  an  estate  for  life,  or  in  fee,  or  because  it  seems  to  the 
court  that  to  permit  the  widow  to  claim  under  the  will,  and 
take  dower  in  addition,  would  be  unjust  or  an  inequitable  di- 
vision; but  "there  must  be  a  clear  incompatibility,  arising  on 
the  face  of  the  will,  between  a  claim  of  dower  and  a  claim  to 
the  benefit  given  by  the  will."133 

In  some  States,  however,  the  statutes  provide  that  the  pro- 
vision in  the  will  shall  be  presumed  to  be  in  lieu  of  dower, 
unless  a  contrary  intent  appears  from  the  contents  of  the 
will.134 

If  the  husband  has  exchanged  land  without  the  wife's  re- 
lease, the  latter  cannot  have  dower  in  both  pieces  of  land,  but 
must  elect  in  which  piece  she  wrill  take  dower,  and  her  election 
to  take  dower  in  one  piece  will  release  all  claim  in  the  other. 

11.     BY  NON-RESIDENCE  OR  ALIENAGE. 

At  the  common  law  the  wife  of  an  alien  was  not  entitled  to 
dower.135  In  most  States  statutes  provide  that  an  alien  shall 

31Bubier  vs.  Roberts,  49  Me.,  463. 

82Wilson  vs.  Cox,  49  Miss.,  538. 

33Konvalinka  vs.  Schlegel,  104  N.  Y.,  125. 

"Cook  vs.  Couch,  100  Mo.,  29. 

mSmall  vs.  Small,  56  Kan.,  1,  30  L.  R.  A.,  243. 


FREEHOLD   ESTATES   NOT   OF   INHERITANCE.  99 

be  entitled  to  dower.  In  some  States  the  statutes  provide  that 
a  non-resident  wife  shall  have  dower  only  in  the  land  of  which 
the  husband  was  seised  at  the  time  of  his  death.136 

12.     BY  JOINTURE. 

The  statute  of  uses  provided  that  the  wife's  dower  might 
be  barred  by  her  acceptance  before  marriage  of  a  settlement 
upon  her  of  a  freehold  estate,  to  commence  on  the  death  of  the 
husband  and  to  continue  for  her  life.  This  settlement  was 
known  as  jointure.  The  statutes  of  the  different  States,  as  a 
rule,  have  provisions  somewhat  similar  to  that  of  the  statute 
of  uses.  As  a  rule,  to  constitute  a  jointure,  the  provision  for 
the  wrife  must  have  the  following  essentials: 

(1)  It  must  take  effect  immediately  on  the  death  of  the 
husband  and  must  continue  for  the  life  of  the  wrife. 

(2)  It  must  consist  of  an  interest  in  real  estate. 

(3)  It  must  be  made  before  marriage,  and  must  be  limited 
to  the  wife  herself,  and  not  to  trustees  for  her. 

(4)  It  must  be  in  satisfaction  of  the  wife's  entire  claim  of 
dower,  and  this  intent  must  be  expressed  in  the  instrument 
creating  the  jointure. 

(5)  It  must  be  a  reasonable  provision  for  the  wife's  liveli- 
hood. 

If  all  these  essentials  exist,  the  provision  for  the  wife  is 
known  as  a  legal  jointure,  and  will  bar  dower.  It  is  not  essen- 
tial that  this  provision  for  the  wife  should  be  made  by  the  hus- 
band; it  may  be  made  by  other  persons. 

The  statutes  in  the  different  States  vary  and  modify  these 
essentials.  An  equitable  jointure  is  an  executory  agreement  to 
make  a  provision  for  the  wife  in  lieu  of  dower,  and  which  puts 

138Pratt  vs.  Tefft,  14  Mich.,  191. 
Small  vs.  Small,  56  Kans.,  1. 
Thorburn  vs.  Doscher,  32  Fed.,  810. 


100  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

the  wife  to  an  election  to  take  such,  provision  or  dower.  As  a 
general  rule,  if  a  legal  jointure  is  made  after  marriage,  or  if 
an  equitable  jointure  is  made  before  or  after  marriage,  the 
wife  on  the  death  may  elect  whether  she  will  take  dower  or 
under  the  provision  of  the  jointure.  The  requirement  that  the 
estate  should  be  a  freehold  was  for  the  security  of  the  wife. 
But  at  the  present  time,  as  we  shall  see,  it  is  possible  to  protect 
the  wife  by  an  income  out  of  personal  property,  and  the  com- 
mon law  has  been  changed  by  statute  so  as  to  permit  a  valid 
settlement  on  the  wrife  of  personal  property  in  lieu  of  dower. 

13.     BY  ANTE-NUPTIAL  SETTLEMENT. 

At  the  common  law  an  agreement  or  settlement  on  the 
future  wrife  in  lieu  of  dower  was  not  binding  on  the  wife;  for 
her  prospective  estate  being  a  freehold,  could  not  be  barred 
by  a  collateral  agreement.137  And  it  was  only  by  virtue  of  the 
statute  of  uses  that  a  jointure  had  the  effect  of  barring  dower; 
but  this  statute  did  not  provide  for  the  barring  of  dower  by 
the  settlement  of  anything  less  than  a  freehold  estate.  In  the 
absence,  then,  of  statutory  provision,  an  agreement  made  prior 
to  the  marriage  for  money  or  property  consideration  other  than 
a  freehold  estate,  is  not  at  law  binding  on  the  wife  and  does 
not  bar  her  dower.  As  a  general  rule,  the  statutes  now  permit 
ante-nuptial  agreements  for  a  valuable  consideration,  and  the 
courts  will  enforce  such  agreements  when  no  advantage  has 
been  taken  of  the  future  wife.138 

%   "'Hastings  vs.  Dickinson,  7  Mass.,  153. 

"*  Vincent     vs.    Spooner,  2     Cush    (Mass.),  467. 

This  was  a  suit  by  the  widow  of  Isaac  Vincent  to  recover  dower 
in  certain  property. 

It  was  admitted  that  demandant  was  the  lawful  wife  of  said 
Vincent,  and  that  the  latter  was  during  coverture  seised  of  the  property; 
but  it  was  contended  that  demandant,  previous  to  her  marriage  with 
said  Vincent,  had  entered  into  an  ante-nuptial  contract  with  him  and 
a  trustee,  by  the  terms  of  which  she  accepted  certain  pecuniary  pro- 
visions, viz:  $1,000  in  cash  within  ten  months  after  decease,  and  $550 


FREEHOLD    ESTATES    NOT   OF   INHERITANCE.  101 

In  order  that  an  ante-nuptial  agreement  may  bar  dower,  it 
must  appear  that  it  was  understood  by  the  wife,  and  that  no 
advantage  has  been  taken  of  the  confidential  relation  existing 
between  the  parties.139 

14.     BY  POST-NUPTIAL,  SETTLEMENT.     . 

At  the  common  law,  a  husband  and  wife  could  not  contract 
with  each  other,  and  any  agreement  made  between  them  in 
reference  to  the  barring  of  the  wife's  dower  would  not  prevent 
the  wife  from  obtaining  dower  on  the  death  of  her  husband. 

If  the  husband  during  coverture  makes  a  settlement  on  the 
wife  in  lieu  of  dower,  the  wife  on  his  death  might  elect  whether 

to  be  paid  annually.  After  decease  of  said  Vincent  his  executor  and 
said  trustee  offered  to  carry  out  the  terms  of  the  agreement  and  ten- 
dered demandant  the  amount  due  under  it,  which  was  refused. 

The  court  held,  that  the  provision,  not  being  a  freehold  estate, 
was  not  a  common  law  jointure,  and  did  not,  at  common  law,  bar 
demandant's  dower.  But  it  was  held  that,  under  the  statute,  a  pecun- 
iary provision  made  for  the  benefit  of  the  intended  wife  and  in  bar  of 
her  dower,  if  assented  by  her,  would  bar  her  dower  in  all  the  lands 
of  her  husband,  and  that  the  provision  of  the  statute  was  complied 
with  in  this  case,  and  it  appearing  that  no  advantage  had  been  taken 
of  the  wife,  it  was  held  that  demandant's  dower  was  barred. 

See  also  Gaugmere's  Estate,  14  Pa.  St.,  417. 

i3»Taylor  vs.  Taylor.   144   111.,   118. 

This  was  a  bill  by  complainant  to  recover  dower  in  her  husband's 
estate.  The  heirs  of  the  husband  denied  that  complainant  was  entitled 
to  dower,  because,  before  her  marriage,  she  entered  into  an  agreement 
with  deceased  to  relinquish  her  dower.  The  agreement  provided  that 
if  complainant  survived  her  husband,  she  was  to  receive  from  his 
estate  the  sum  of  $2,000  in  full  for  all  claims  of  dower  in  the  real  estate 
of  deceased,  and  in  full  of  all  interest  in  his  personal  estate.  At  the 
time  of  his  death,  deceased  was  possessed  of  realty  of  the  value  of 
$28,000,  and  personalty  of  the  value  of  $13,000.  The  court  held  that 
the  provision  for  the  wife  was  inadequate,  inequitable  and  unreason- 
able, and  that  the  same  was  not  an  equitable  bar  to  her  dower.  It 
was  held,  that  while  the  parties  may  lawfully  contract  with  each 
other,  where  there  is  full  knowledge  of  all  the  facts,  yet,  where  the 
provision  secured  for  the  intended  wife  is  disproportionate  to  the 
means  of  the  intended  husband,  it  raises  the  presumption  of  a  designed 
concealment  or  an  advantage  taken  of  the  confidential  relation  exist- 
ing between  the  parties,  and  that,  under  such  circumstances,  the 
burden  was  upon  the  defendants  to  overcome  such  presumption  by 
proof  that  the  wife  had  knowledge  of  the  extent  of  her  husband's 
estate  and  the  effect  of  her  agreement. 

It  was  held,  that  the  proof  offered  by  defendants  in  this  case  was 
not  sufficient  to  overcome  this  presumption. 


102  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

to  take  dower  or  under  the  provision  of  the  settlement,  but  she 
could  not  take  both.  If  the  wife,  after  the  husband's  death, 
elects  to  take  under  the  settlement,  her  dower  in  the  hus- 
band's other  realty  will  be  barred.140 

This  is  the  common  law  rule,  and  prevails  in  all  States  in 
which  it  is  not  changed  by  statute. 

In  some  States  the  statutes  permit  the  wife  to  release  her 
dower  during  coverture  to  her  husband,  and,  in  these  States, 
an  agreement  whereby  the  wife,  for  an  adequate  compensation 
and  without  fraud  or  coercion  releases  her  dowrer  to  her  hus- 
band, will  be  enforced.141 

HOMESTEAD. 

At  the  common  law,  land  could  not  be  taken  on  an  execu- 
tion. The  creditor  could  only  have  the  satisfaction  of  goods 
and  chattels  and  the  present  profits  of  land,  but  not  the  pos- 
session of  land.  This  rule,  says  Blackstone,  "was  a  natural 
consequence  of  the  feudal  principles  which  prohibited  alien- 
ation." 

Subsequently  this  omission  in  the  common  law  was  supplied 
by  statute,  both  in  England  and  in  this  country,  and  the  cred- 
itor was  permitted  to  have  satisfaction  both  of  the  goods  and 
chattels  and  the  lands  and  tenements  of  his  debtor. 

In  process  of  time  other  statutes  gave  to  the  creditors  the 
writ  of  capias  ad  satisfaciendum,  under  which  the  body  of  the 
debtor  could  be  taken  and  held  until  payment  of  the  debt. 

These  statutes  were  much  abused  by  the  creditor  classes, 
and  after  the  exhaustion  of  all  the  debtor's  property,  it  became 

"°Lee  vs.  Timken,  41  N.  Y.,  Sup.,  979. 

Swaine  vs.  Ferine,  5  Johns  Chy.  (N.  Y.),  482. 
'"McKelvey  vs.  McKelvey  (Mich.),  70  N.  W.,  582. 


FREEHOLD   ESTATES   NOT   OF   INHERITANCE.  10'3 

a  common  practice  to  imprison  his  body.  The  evil  effect  of 
these  extended  remedies  was  soon  felt,  and  led  to  the  passage 
of  laws  preventing  or  limiting  imprisonment  for  debt,  the  ex- 
emption of  certain  personal  property  from  claims  of  creditor, 
and  the  homestead  laws.'42 

It  is  not  our  province  to  discuss  any  of  these  exemptions, 
except  those  relating  to  land  and  commonly  known  as  "Home- 
stead Exemptions." 

In  all  the  States  which  have  adopted  homestead  laws,  the 
purpose  of  the  statute  is  to  provide  for  the  family  a  home  in 
which  they  may  be  sheltered  and  protected  against  improvi: 
dence  or  financial  misfortune,  and  to  encourage  the  head  of 
the  family  in  industry,  virtue  and  independence  by  preserving 
to  him  a  permanent  home  "around  which  to  gather  the  affec- 
tions of  the  family  and  to  which  the  members  fondly  turn, 
however  widely  they  may  become  dispersed."144 

10The  circumstances  which  prompted  and  the  purpose  of  the  adop- 
tion of  the  Homestead  law  are  stated  by  Judge  Dick,  as  follows: 
"Until  within  a  recent  period  the  statute  law  of  this  State  subjected 
to  execution  the  lands,  the  person  and  chattels  of  the  debtor.  This 
legislation  and  the  natural  greed  of  creditors  necessarily  had  the  effect 
of  filling  the  country  with  the  families  of  paupers,  who  were  a  burden 
instead  of  a  benefit  to  the  State. 

"The  Constitution  of  this  State,  adopted  in  1868,  was  the  com- 
mencement of  a  more  humane  and  enlightened  policy  on  this  subject. 
The  result  of  the  rebellion  had  rendered  a  large  number  of  our  people 
bankrupt  in  fortune,  and  the  convention  of  1868  determined  to  insert 
a  provision  in  our  organic  law  to  preserve  the  liberty  of  an  honest  and 
unfortunate  debtor,  and  to  secure  a  home  for  his  family,  and  thus 
induce  him  to  remain  in  our  midst  and  encourage  and  enable  him  by 
honest  industry  to  assist  in  restoring  wealth  and  prosperity  to  the 
States. 

"Our  feudal  ancestors  regarded  the  house  and  person  of  the  citizen 
as  belonging  to  the  State,  and  necessary  to  its  security,  prosperity 
and  power.  In  allowing  the  homestead  and  abolishing  imprisonment 
for  debt,  except  for  fraud  the  convention  adopted  the  same  wise 
policy,  but  for  a  higher  object — not  for  the  purpose  of  making  the 
citizen  a  ready  and  efficient  soldier  of  war,  but  to  encourage  and 
enable  him  to  direct  his  intellect  and  energies  in  the  arts  of  peace  and 
the  pursuits  of  industry,  and  thus  contribute  to  the  national  wealth, 
prosperity  and  advancement."  Re  Volger,  8  N.  B.  R.,  132. 

'"Campbell  vs.  Adair,  45  Miss.,  182. 
Franklin  vs.  Coffee,  18  Texas,  415. 
Wassell  vs.  Tumah,  25  Ark.,  103. 


104  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

LEGISLATION. 

Homestead  exemptions,  then,  exist  only  by  virtue  of  some 
constitutional  or  statutory  provision. 

The  statutes  of  the  various  States,  although  enacted  to 
carry  out  the  same  general  purpose,  yet  differ  in  many  import- 
ant details.  It  is  impossible,  therefore,  in  treating  of  this  sub- 
ject, to  lay  down  general  principles  which  are  applicable  in  all 
the  States.  The  most  we  can  do  is  to  call  the  student's  atten- 
tion to  a  few  of  the  statutory  provisions  which  have  been  gen- 
erally adopted,  and  briefly  consider  the  decisions  growing  out 
of  the  most  common  provisions. 

In  some  States  the  statutes  in  substance  provide  that  a 
"homestead"  consisting  of  a  certain  number  of  acres,  when 
not  within  a  town  or  village  plat,  and  the  dwelling  house 
thereon  and  its  appurtenances,  or  a  quantity  of  land  not  ex- 
ceeding a  lot  or  a  certain  number  of  lots  within  a  city,  town, 
or  village  plat,  and  the  dwelling  house  thereon,  when  same 
does  not  exceed  a  certain  value,  shall  be  exempt  from  execu- 
tion, or  any  other  process,  while  occupied  by  the  owner,  his 
widow,  or  minor  child.  In  other  States,  the  statutes  grant 
exemptions  to  certain  persons  named.  The  statutes  do  not 
use  the  same  phraseology,  but  the  exemption  is  extended  to 
substantially  the  same  persons. 

The  following  are  some  of  the  persons  named  in  the  various 
statutes  as  being  entitled  to  a  homestead  exemption,  viz. :  "a 
householder,"  "a  householder  having  a  family,-'  "head  of  a 
family,"  "one  having  a  wife  or  family,"  "every  debtor  who  is 
the  head  of  a  family,"  etc. 

The  statutes  usually  provide  that  on  the  death  of  the  owner, 
leaving  a  widow  or  minor  children,  the  homestead  shall  be  ex- 
empt during  the  life  of  the  widow,  or  minority  of  the  youngest 
child,  and  while  it  is  occupied  as  a  homestead.  In  some  States 


FREEHOLD   ESTATES    NOT   OF   INHERITANCE.  J.05 

the  homestead  right  of  the  widow  is  limited  to  her  life,  or  as 
long  as  she  "shall  remain  unmarried."145  Many  of  the  statutes 
require,  in  order  that  the  homestead  may  exist,  certain  formal- 
ities in  the  making  and  recording  the  claim  or  declaration  of 
homestead. 

In  other  States  the  deed  of  conveyance  by  which  the  home- 
stead is  acquired  must  set  forth  that  it  is  designed  to  be  used 
as  a  homestead. 

In  many  of  the  States  no  formalities  are  required,  and  in 
such  States  the  occupancy  and  use  of  the  property  as  a  home 
is  sufficient  to  constitute  a  homestead,  and  such  occupancy  is 
notice  to  all  parties  dealing  with  the  property  of  the  homestead 
rights  of  the  occupants.  Most  of  the  statutes  provide  that  the 
homestead  property  shall  not  be  aliened,  except  by  the  joint 
act  of  the  husband  and  the  wife. 

CONSTRUCTION. 

As  has  been  stated,  homestead  acts  are  founded  upon  public 
policy  to  carry  out  humane  and  benevolent  purposes,  and  for 
this  reason  the  courts  will  give  them  a  liberal  construction  in 
order  that  the  intent  of  the  legislation  may  be  given  full  ef- 
fect.146 

The  statutes  are  not  regarded  as  being  in  derogation  of  the 
common  law. 


U5The  statutes  in  Massachusetts  in  this  respect  is  as  follows: 
"The  estate  or  right  of  homestead  of  any  householder  existing  at  his 
death  shall  continue  for  the  benefit  of  his  widow  and  minor  children 
and  be  held  and  enjoyed  by  them,  if  some  one  of  them  occupies  the 
premises  until  the  youngest  child  is  twenty-one  years  of  age  and  until 
the  death  or  marriage  of  the  widow."  »•  . 

The  same  provision  is  found  in  a  number  of  other  States. 

140Riggs  vs.  Sterling,  60  Mich.,  643. 

In  Louisiana  and  Minnesota  a  different  rule"  prevails  and  the  home- 
stead statutes  are  strictly  construed.  • 


106  FREEHOLD   ESTATES   NOT   OP   INHERITANCE. 

NATURE  OF  ESTATE  OR  RIGHT  CREATED. 

There  is  a  difference  of  opinion  as  to  whether  the  home- 
stead statutes  creats  an  estate  or  a  mere  personal  privilege  to 
enjoy  the  property  free  from  the  claims  of  one's  creditors. 

In  many  of  the  States,  the  interest  of  the  claimant  is  re- 
garded as  a  mere  privilege  or  right.  "It  seems  absurd  to  say 
that  a  debtor  can  have  a  vested  right  to  keep  property  against 
a  debt  contracted  for  its  purchase  or  a  vested  right  in  any  ex- 
emption. As  to  him,  the  law  grants  the  exemption  as  a  boon 
and  because  the  State  does  not  care  to  lend  its  aid  to  push  an 
unfortunate  to  the  wall.  Its  own  policy  requires  it,  and  that 
alone  is  the  object.  The  exemption  is  not  the  right  of  the 
debtor."147 

So,  a  homestead  has  been  defined  as  a  mere  right  to  enjoy 
the  interest  of  the  possessor,  or  of  a  deceased  husband  or 
ancestor  as  against  creditors  who  would  take  it  away,  or  as 
against  the  grantee  or  mortgagee  of  a  married  owner  whose 
wife  was  not  in  due  form  consenting  to  the  deed.148 

In  the  States  adopting  this  view,  in  the  absence  of  a  consti- 
tutional restriction,  it  would  be  competent  for  th  elegislature 
to  abolish  or  diminish  the  extent  of  the  homestead  right  with- 
out the  consent  of  persons  enjoying  homestead  exemptions 
under  previous  statutes.149  The  right  being  personal  can  not 
be  assigned  or  transferred  to  another. 

In  other  States,  the  homestead  right  is  regarded  as  a  vested 
right  or  estate.  Thus,  in  Iowa,  it  was  held  that  the  right  of 
homestead  having  once  attached,  it  could  not  be  taken  away 
by  the  legislature,  without  the  consent  of  the  owner.150 

147Sparger  vs.  Cumpton,  54  Ga.,  359. 

'"Robinson  vs.  Baker,  47  Mich.,  619. 

1        ""Sparger  vs.  Cumpton,  54  Ga.,  359. 

Parker  vs.  King,  16  Wis.,  233. 
150Finely  vs.  Dietrich,  12  Iowa,  516. 


FREEHOLD   ESTATES   NOT   OF   INHERITANCE.  107 

In  North.  Carolina  it  was  held  that  the  homestead  is  an 
estate  or  quality.  This  decision  is  against  the  weight  of  au- 
thority and  an  able  dissenting  opinion  by  J.  Clark  expresses 
the  better  opinion.151  The  question  as  to  the  exact  nature  of 
the  homestead  right  has  not  often  arisen;  for  ordinarily  it 
makes  little  or  no  difference  to  the  debtor  or  the  creditor 
whether  the  debtor's  right  be  regarded  as  a  vested  right  or  a 
mere  "privilege"  or  "grace"  or  "favor."  Probably  in  all  States 
when  property  has  been  set  off  under  the  statute  to  the  widow 
and  children,  they  would  be  regarded  as  the  owners  of  vested 
rights..152 

We  may  now  attempt  the  definition  of  the  term  "home- 
stead:" 

A  HOMESTEAD  IS  A  BIGHT  ATTACHED  TO  THE  OWNER- 
SHIP OF  LAND,  THE  PURPOSE  OF  WHICH  IS  TO  PROTECT  THE 
POSSESSION  AND  ENJOYMENT  OF  THE  OWNER,  OR  THE  WIFE 
OR  CHILDREN  OF  AN  OWNER,  AGAINST  THE  CLAIMS  OF 
CREDITORS  WHILE  THE  SAME  IS  OCCUPIED  AS  A  HOME.153 

WHO   MAY  CLAIM  BENEFIT   OF   HOMESTEAD   EXEMPTIONS? 

It  has  been  pointed  out  that  the  homestead  acts  differ 
somewhat  in  terms,  but  that  the  general  purpose  of  these  acts 
is  to  protect  the  "family."  It  remains  to  briefly  consider 
what  constitutes  a  "family"  and  who  may  be  regarded  as  a 
"head  of  a  family"  or  a  "householder"  within  the  intent  of  the 
statutes. 

In  a  few  States  it  is  not  necessary  to  make  this  inquiry,  for 
the  statutes  give  a  homestead  exemption  to  any  "resident"  of 
the  State,  occuping  a  home,  irrespective  of  his  relationship 
to  the  family.154  But  in  most  states  the  question  is  material. 

I51Stern  vs.  Lee,  115  N.  C.,  426. 
152See  dictum  Sparger  vs.  Cumpton,  54  Ga.,  359. 
153Buckingham  vs.  Buckingham,  81  Mich.,  89. 

154This  is  the  law  in  Wisconsin,  Minnesota,  Arkansas  and  North 
Carolina. 


108  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

It  is  difficult  to  state  any  general  criterion  by  which  it  may 
be  determined  in  all  cases  whether  certain  aggregations  of 
persons  constitute  a  family,  and  whether  any  given  person 
may  be  regarded  as  the  head  of  a  family. 

The  following  statement,  although  subject  to  soine  excep- 
tions, will  be  useful  to  the  student: 

TO  CONSTITUTE  A  FAMILY,  THERE  MUST  BE  A  COLLEC- 
TIVE BODY  OF  PERSONS  LIVING  TOGETHER  AND  SUBSIST- 
ING IN  COMMON,  AND  THERE  MUST  BE  EITHER  A  LEGAL  OR 
MORAL  OBLIGATION  ON  THE  PART  OF  THE  BEAD  OF  THE 
BODY  ARISING  OUT  OF  HIS  RELATIONSHIP,  AND  NOT  OUT 
OF  CONTRACT,  TO  SUPPORT  ONE  OR  MORE  OF  ITS  MEMBERS. 

The  family  is  an  aggregation  of  individuals. 

A  mere  aggregation  of  individuals  living  together  in  the 
same  house  is  not  of  itself  sufficient  to  constitute  a  family 
within  the  meaning  of  the  homestead  acts;  but  there  must  be 
a  legal  or  a  moral  obligation  on  the  part  of  the  head  of  the 
house  to  support  some  of  the  other  members  of  the  aggrega- 
tion, and  on  the  part  of  such  members  a  corresponding  depend- 
ence on  the  head  of  the  family.155  The  application  of  this 
principle  is  found  in  the  following  decisions:  An  unmarried 
man  who  kept  house  but  had  no  family  except  servants,  was 
held  not  to  be  "the  head  of  a  family''  so  as  to  entitle  him  to 
homestead  exemptions.156 

A  husband  supporting  a  wife,157  a  father  supporting  his 
children;  an  unmarried  woman  supporting  an  illegitimate 
child;  a  widow  supporting  minor  children;158  a  guardian  or 


155Greenwood  vs.  Madox,  27  Ark.,  684. 
150Calhoun  vs.  Williams,  32  Gratt.,  18. 

Wilson  vs.  Cockran,  31  Tex.,  680. 
'"Miller  vs.  Finnegan,  26  Fla.,  29;  6  L.  R.  A.,  813. 

Holloway  vs.  Holloway,  86  Ga.,  576;  11  L.  R.  A.,  518. 


FREEHOLD   ESTATES   NOT   OF   INHERITANCE.  109 

trustee  supporting  minor  children,159  have  all  been  held  to  be 
the  head  of  a  family  and  entitled  to  the  exemption.  So,  a 
husband  after  divorce,  living  with  his  minor  children,  was 
held  to  be  entitled  to  the  homestead  exemption.  The  above 
are  instances  in  which  one  having  a  legal  duty  to  support 
another  has  been  held  to  be  a  head  of  a  family. 

In  most  States  the  protection  of  the  statute  is  also  ex- 
tended to  those  owing  a  moral  obligation  to  support  one  or 
more  persons  while  they  continue  to  live  together  as  a  family. 

This  test  is  not  so  certain  and  of  as  easy  application  as  in 
the  case  of  one  owing  a  legal  duty,  and  the  decisions  are  not 
always  uniform.  In  the  States  adopting  this  rule,  the  follow- 
ing persons  have  been  held  to  be  entitled  to  a  homestead  ex- 
emption: An  unmarried  man  supporting  his  brothers  and 
sisters;161  an  unmarried  woman  supporting  the  children  of  a 
deceased  sister;162  an  unmarried  man  supporting  his  sister 
and  her  children.163 

The  following  persons  have  been  held  to  be  under  no  obli- 
gation, moral  or  legal,  to  support  a  member  of  the  family,  and 
therefore  not  entitled  to  the  homestead  exemption:  A  step- 
son residing  with  his  stepmother;164  a  tenant  boarding  his 
landlord;165  a  widower  without  dependents;  a  man  who  has 
living  with  him  several  persons  to  whom  he  is  not  related  and 
who  are  not  dependent  upon  him;166  a  single  man  living  with 

Kitchell  vs.  Burgwen,  21  111.,  40. 
'"Estate  of  Wixon,  35  Cal.,  320. 
""Routree  vs.  Denard,  59  Ga.,  629. 
^Cannaughton  vs.^ands.  32  Wis.,  391. 
02Arnold  vs.  Waltz,  53  Iowa,  706. 
03Wade  vs.  Jones,  20  Mo.,  75. 

Moyer  vs.  Drummond,  32  S.  C.,  165;  7  L.  R.  A.,  747. 
01Brown  vs.  Wilt,  19  Wend.,  475. 
05Brown  vs.  Brown,  68  Mo.,  388. 
186  BoHqiiott    vs.    Hall,    9O    Ky.,    566,  9  L,.  R.  A.,   747. 

Plaintiffs  recovered  a  judgment  against  defendant,  and  under  an 
execution  sold  a  house  and  lot  belonging  to  him. 


110  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

a  child  he  has  taken  to  raise,  but  which  he  is  under  no  legal 
nor  moral  obligation  to  support.167 

In  a  few  States,  a  moral  obligation  to  support  another 
member  of  the  household  is  not  sufficient  to  constitute  one  the 
head  of  a  family,  but  there  must  be  a  legal  obligation  to  sup- 
port some  member  of  the  family.  Thus,  it  was  held  in  Georgia 
that  a  brother  maintaining  an  indigent  sister  was  not  the 
head  of  a  family;  since  he  was  under  no  legal  obligation  to 
support  her.a 

In  a  number  of  cases  it  has  been  held  that  if  the  home- 
stead is  once  legally  acquired,  the  death  of  all  the  family  ex- 
cept the  owner  will  not  deprive  him  of  the  homestead  ex- 
emption.168 

It  is  not  essential  that  one,  in  order  to  be  the  head  of  a 
family,  as  intended  in  homestead  acts,  should  be  a  man.169 

A  married  woman  may  be  the  head*  of  a  family,  and  may 
have  an  exemption  in  property  owned  by  her  on  which  she 
actually  resides,  against  her  own  debtors.  And  in  some  States 
it  has  been  held  that  a  wife  who  continues  to  reside  in  the 
homestead  after  the  desertion  of  her  husband,  was  entitled  to 


Plaintiffs  brought  this  action  to  recover  possession,  and  defendant 
claimed  that  the  .property  was  exempt  as  a  homestead.  Defendant  was 
unmarried  and  had  no  family  of  his  own  or  blood  relatives  living  with 
him.  He  had  living  with  him  in  the  property  sold  an  old  -woman  who 
acted  as  his  housekeeper  and  some  little  girls  left  in  his  care  by  their 
mother,  but  who  were  not  related  to  and  were  not  adopted  by  him. 

The  court  held  that  the  persons  living  with  defendant  had  no  nat- 
ural or  legal  claim  upon  him;  that  he  might  at  any  time  separate 
from  them  without  violating  any  legal  or  natural  obligation,  and  that, 
therefore,  he  was  not  the  head  of  a  family  so  as  to  entitle  him  to  the 
homestead  exemption. 

167Mullens  vs.  Looke,  27  S.  W.,  926. 
See  also  Holnbeck  vs.  Wilson,  159  111.,  148. 
a    Dendy  vs.  Gamble,  64  Ga8.,  528. 

168Wilkinson  vs.  Merrill,  87  Va.,  513;  11  L.  R.  A.,  632. 
Stults  vs.  Sale,  92  Ky.,  5;  13  L.  R.  A,  743. 

189Orr  vs.  Shraft,  22  Mich.,  260. 


FREEHOLD   ESTATES    NOT   OP   INHERITANCE.  Ill 

a  homestead  exemption.170  After  the  husband's  death,  as  has 
been  stated,  the  wife,  as  against  the  husband's  creditors,  is 
entitled  to  enjoy  the  homestead  for  life  or,  in  some  States 
until  she  remarries. 

Ordinarily  the  right  of  homestead  arises  only  as  between 
the  person  entitled  to  claim  the  exemption  by  law  and  cred- 
itors, and  not  between  the  heirs  and  the  widow.  When  there 
are  no  creditors  a  homestead  does  not,  in  most  States,  arise, 
but  the  property  passes  at  once  to  the  heirs  subject  to  the 
widow's  right  of  dower.171 

IN  WHAT  PROPERTY  AND  HOW  ACQUIRED. 

A  homestead  exemption  may  not  be  claimed  in  any  prop- 
erty, but  only  in  property  having  certain  characteristics. 

The  following  propositions  will  give  the  student  an  ac- 
curate idea  as  to  the  nature  of  the  property  in  which  a  home- 
stead may  be  claimed: 

1.  THE  PROPERTY  MUST  BE  OCCUPIED  AS  A  HOME,  OR 
IF  NOT  ACTUALLY  OCCUPIED  AS  A  HOME,  THERE  MUST  BE 
A  BONA  FIDE  INTENT  AND  PREPARATION  TO  OCCUPY  IT  AS 
A  HOME. 

In  determining  whether  any  given  property  is  a  homestead, 
the  first  inquiry  is  as  to  its  use,  or  its  intended  use. 

The  property  must  be  the  actual  or  intended  home  of  the 
owner.  A  man  cannot  in  fact  reside  in  two  places,  although 
he  may  have  two  places'  of  residence,  and  it  is  therefore  impos- 
sible for  him  to  have  two  homesteads.172 


170 Alexander  vs.  Alexander,  52  111.  App.,  195. 

Byers  vs.  Johnston  (la.),  56  N.  W.,  449. 
1T1Zoellner  vs.  Zoellner,  53  Mich.,  620. 
172Goodell  vs.  Boardman,  53  Vt.,  92. 


112  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

Thus  it  was  held  that  where  the  head  of  a  family  resides  in 
a  town  and  owned  land  several  miles  from  the  town,  the  latter 
property  was  not  exempt  from  execution  as  a  homestead ;  since 
it  was  not  actually  occupied  by  the  owner  as  a  residence.173 

And  for  the  same  reason,  it  was  held  that  land  on  which 
there  were  no  buildings  except  a  barn,  could  not,  in  the  ab- 
sence of  an  intention  to  occupy  it  as  a  homestead,  be  consid- 
ered as  a  homestead.174  So,  property  in  the  possession  of  a 
tenant  and  to  which  the  owner  has  no  present  or  bona  fide 
intention  to  occupy  again  as  a  home,  will  not  be  exempt  as  a 
homestead.175 

A  bon  fide  intent  to  occupy  land  in  which  one  has  only  an 
estate  in  remainder  as  a  homestead  when  he  comes  into  pos- 
session does  not  make  it  exempt  under  the  homestead  laws.170 

2.     THE   PROPERTY  NEED  NOT  BE  EXCLUSIVELY  OCCU- 
PIED AS  A  HOME. 

While  it  is  essential  that  the  property  should  be  actually 
occupied  as  a  home,  it  need  not  be  exclusively  occupied  as  a 
home.177  The  property  may  be  occupied  for  other  purposes, 
and  will  be  still  exempt,  providing  that  it  still  retains  the 
characteristics  of  a  home.  Thus,  it  has  been  held  that 
where  the  property  was  actually  occupied  as  a  home,  the 
fact  that  a  portion  of  it  was  used  for  business  pur- 
poses, will  not  prevent  a  claim  of  homestead.178  So 
it  was  held,  where  the  second  story  was  occupied  by  the 


17301iver  vs.  Snowden,  18  Fla.,  823. 

174Rice  vs.  Rudd,  57  Vt,  6. 

175Hoitt  vs.  Webb,  36  N.  H.,  158. 

170Stern  vs.  Lee,  115  N.  C.,  426;  26  L.  R.  A.,  814. 

177King  vs  Welborn,  83  Mich.,  195;  9  L.  R.  A.,  803. 

178Cass  County  Bank  vs.  Weber,  83  Iowa,  62;  12  L.  R.  A.,  477. 


FREEHOLD    ESTATES   NOT   OF   INHERITANCE.  113 

family  as  a  home,  and  the  first  rtoor  was  leased  for  mercantile 
purposes,  that  the  property  was  exempt  as  a  homestead  from 
sale  on  execution.170  But  a  separate  building  used  lor  busi- 
ness purposes  and"  a  stable  used  for  hotel  purposes,  on  the 
same  lot  as  a  hotel  which  was  exempt  as  a  family  homestead, 
were  held  not  to  be  a  part  of  the  homestead. 

3.  IT  IS  NOT  NECESSARY  THAT  THE  PROPERTY  SHOULD 
BE  CONTINUOUSLY  OCCUPIED  AS  A  HOME,  PROVIDING 
THERE  IS,  WHILE  ABSENT,  AN  INTENTION  TO  RETURN  AND 
OCCUPY  IT  AS  A  HOME. 

A  temporary  absence  of  the  owner  with  an  intention  to 
return  and  occupy  the  property  as  a  home,  will  not  affect  the 
homestead  exemption.180. 

In  a  number  of  states,  after  the  death  of  the  husband,  the 
rule  requiring  an  actual  occupancy  is  not  enforced  so  strictly 
against  the  wife  and  minor  children.  In  some  cases,  the  wife 
lias  been  allowed  homestead  exemptions  in  property  of  which 
she  was  not  in  actual  possession,  but  which  she  controlled 
through  an  agent  or  tenant. 

""Deford  vs.  Painter,  3  Okla.,  80;  30  L.  R.  A.,  722. 

Corey  vs.  Schuster,  62  N.  W.,  470. 

Pendergast  vs.  Heekin,  94  Ky.,  384. 

Hogan  vs.  Manners,  23  Kan.,  551. 

Orr  vs.  Shraft,  22  Mich.,  260. 

See  contra,  Rhodes  vs.  McCormick,  4  Iowa,  368. 
ls"Herrick  vs.  Graves,  16  Wis.,  157. 
Chitty  vs.  Cbitty,  118  N.  C.,  647;  32  L.    R.    A.,    394. 

This  was  an  action  brought  to  recover  property  sold  under  an 
attachment,  which  plaintiff  claims  was  exempt  from  execution. 

The  plaintiff,  in  November,  1887,  owned  and  occupied  as  a  home 
the  land  in  controversy,  and  in  that  month  left  the  State  to  avoid  ar- 
rest on  a  criminal  warrant,  with  the  intention  of  returning  as  soon  as  the 
the  case  against  him  should  be  dropped.  Plaintiff's  wife  and  family  con- 
tinued to  reside  on  the  property  until  plaintiff  returned  in  1889. 
Plaintiff,  during  his  absence,  spent  his  time  in  visiting  relatives  in 
various  States,  intending  to  return  to  his  home  when  he  believed  the 
charge  against  him  to  be  buried. 

During  plaintiff's  absence  an  attachment  was  issued  against  the 
property  and  the  land  was  sold.  The  defendant  being  the  purchaser 


114  FREEHOLD    ESTATES    NOT   OF    INHERITANCE. 

The  chief  exception  to  the  rule  that  there  must  be  an  actual 
occupancy  of  the  property  as  a  home,  is  found  in  those  cases 
in  which  the  owner,  while  not  in  actual  occupation,  yet  intends 
in  good  faith  to  make  the  property  his  home,  and  has  made 
some  preparation  to  carry  such  intent  into  effect. 

Thus  it  was  held  that  the  purchase  of  an  unimproved  lot  by 
a  single  man  in  contemplation  of  marriage,  and  with  the  intent 
to  make  it  a  homestead,  followed  by  the  enclosure  and  improve- 
ment of  the  lot,  entitled  the  owner  to  the  benefit  of  the  home- 
stead exemption.182 

As  a  general  rule,  the  intent  to  occupy  the  property  will  not 
of  itself  be  sufficient  to  make  a  homestead ;  but  the  intent  must 
be  evidenced  by  some  act  of  preparation,  and  must  be  followed 
by  an  actual  occupancy  within  a  reasonable  time.183 

The  intent  to  occupy  the  property  as  a  home  must  exist  in 
good  faith  prior  to  the  time  of  the  levy  under  the  execution.  If 

at  such  sale.  The  lower  court  held  that  the  plaintiff,  during  his  ab- 
sence, was  not  a  "resident"  of  the  State,  and  therefore  not  entitled 
to  a  homestead. 

The  Supreme  Court  held  that  the  term  "resident"  should  be  con- 
strued to  accomplish  the  purpose  of  the  homestead  laws,  and  that  an 
absence  from  the  State  did  not  necessarily  mean  a  change  of  residence 
if  there  was  an  intention  to  return. 

In  determining  whether  or  not  there  was  an  intent  to  return  the 
court  held  that  it  was  proper  to  consider  the  length  of  time  of  absence, 
the  fact  whether  or  not  a  residence  was  acquired  in  another  State,  and 
whether  or  not  the  home  was  still  maintained  in  the  State  in  which 
the  exemption  was  claimed,  and  whether  or  not  the  absent  person  en- 
gaged while  away  in  some  permanent  business.  In  this  case  the  court 
held  that  plaintiff  intended  to  return,  and  that  he  was  entitled  to  the 
homestead  exemption,  and  the  judgment  of  the  lower  court  was 
reversed. 

See  also  Phipps  vs.  Acton,  12  Bush,  375. 

Franklin  vs.  Coffee,  18  Tex.,  416. 
^Reske  vs.  Reske,  51  Mich.,  541. 

Gallagher  vs.  Keller,  30  S.  W.,  248. 

Contra  Stuart  First  Nat.  Bk.  vs.  Hollingsworth,  78  Iowa,  575;  6  L. 

R.  A.,  575. 
'"Deville  vs.  Widoe,  64  Mich.,  593. 

Tromans  vs.  Mahlman.'  Ill  Cal.,  599. 

Shaw  vs.  Kirby,  93  Wis.,  379. 


FREEHOLD   ESTATES    NOT   OF    INHERITANCE.  115 

the  intent  is  formed  after  the  levy  and  for  the  purpose  of  de- 
feating it,  the  homestead  exemption  will  not  arise..184 

As  a  general  rule,  a  mere  intention  to  occupy  property  as  a 
home,  without  any  preparation  to  carry  into  effect  such  intent, 
will  not  entitle  the  owner  to  the  homestead  exemption.185 

In  conclusion  on  the  subject  of  occupancy,  it  may  be  said 
that  in  all  cases  in  which  the  question  as  to  whether  the  occu- 
pancy is  sufficient  to  constitute  a  homestead  arises  the  courts 
endeavor  to  carry  out  the  spirit  of  the  statutes  and  protect  the 
home;  but,  at  the  same  time,  they  exercise  care  that  the  debtor 
shall  not,  by  falsely  claiming  homestead  in  property  which  he 
does  not  occupy  in  good  faith  as  a  home,  and  thereby  defeat  tke 
payment  of  his  just  debts.1 86 

As  already  pointed  out,  in  some  States,  in  order  that  a 
homestead  may  arise,  there  must  be  not  only  an  actual  occu- 
pancy, but  in  addition,  there  are  certain  statutory  requirements 
as  to  recording  a  claim  of  homestead.  In  the  States  having 
these  statutory  requirements,  the  statutes  must  be  complied 
with  in  order  that  the  exemption  may  arise.  The  statutes  re- 
quiring such  formalities  do  not  do  away  with  the  necessity  of 
occupancy. 

The  student  is  referred  to  the  statutes  of  his  own  State,  as 
to  such  requirements. 

EXTENT  OP  HOMESTEAD. 

We  come  now  to  inquire  what  property  is  included  within 
UK-  homestead. 

As  we  have  seen,  the  right  of  homestead  centers  around  the 
home,  but  the  homestead  exemption  is  not  limited  to  the  home 

JS4Bowles  vs.  Hoard,  71  Mich.,  150. 
185Bente  vs.  Lange  (Tex.),  29  S.  W.,  813. 
lv:Herrick  vs.  Graves,  16  Wis.,  157. 


lit)  FREEHOLD    ESTATES    NO'I    OF   INHERITANCE. 

itself,  but  includes  other  property  in  proximity  and  bearing  a 
certain  relation  to  the  home. 

IN  THE  ABSENCE  OF  A  STATUTORY  .LIMITATION  THE 
HOMESTEAD  INCLUDES  NOT  ONLY  THE  DWELLING  HOUSE, 
BUT  ALSO  THE  PROPERTY  CONTIGUOUS  AND  APPURTEN- 
ANT TO  IT,  WHEN  NECESSARY  FOR  THE  MAINTENANCE 
AND  ENJOYMENT  OF  THE  HOME. 

There  are  a  number  of  cases  illustrating  the  application  or 
this  statement.  It  has  been  frequently  held  that  the  home- 
stead included  not  only  the  home  and  buildings  connected 
therewith,  such  as  barns,  sheds,  etc.,  but  contiguous  buildings, 
such  as  a  mill,  etc.,  used  by  the  head  of  the  family  in  his  usual 
employment.187 

The  reasoning  of  this  class  of  cases  seems  to  be  that  it  is 
necessary  for  the  protection  of  the  family  to  preserve  to  its 
head  the  usual  means  by  which  the  family  is  supported.  If 
the  property  is  not  contiguous  to  the  home,  it  will  not  be  con- 
sidered as  a  part  of  the  homestead,  even  thought  it  be  neces- 
sary for  the  maintenance  and  enjoyment  of  the  home.188 

But  a  contrary  rule  prevails  in  some  States.189 

In  most  of  the  States,  the  homestead  has  been  limited  in 
quantity  or  in  value,  and  the  term  "homestead"  is  now  fre- 
quently used  in  a  more  contracted  sense  to  indicate  the  prop- 
erty which  is  exempt  under  the  statute. 

THE  HOMESTEAD  IS  LIMITED  TO  THE  QUANTITY  OR 
VALUE  PROVIDED  FOR  BY  STATUTE. 

Homesteads  under  the  statutes  limiting  their  extent  are  of 
two  classes;  rural  and  urban. 

As  a  general  rule,  rural  homesteads  are  limited  to  the 
dwelling  house  and  a  certain  number  of  acres  contiguous  to  it. 

'"Greeley  vs.  Scott,  2  Woods,  657. 
'""Walters  vs.  People,  18  111.,  194. 
""'Buxton  TS.  Dearborn.  46  N.  H.,  43. 


FREEHOLD   ESTATES   NOT   OF   INHERITANCE.  117 

It  is  the  intention  of  the  statutes  relating  to  rural  homesteads, 
to  exempt  sufficient  property  to  enable  the  family  to  maintain 
a  farm.  The  statutes  vary-  as  to  the  extent  of  this  exemption. 
In  some  States,  the  exemption  is  limited  to  forty  acres,  and  in 
others  to  as  high  as  one  hundred  and  sixty  acres. 

In  some  States  there  is  also  a  limit  as  to  the  value  of  rural 
homesteads. 

Urban  homesteads  are  usually  restricted  to  one  or  a  certain 
number  of  lots  and  to  a  certain  value.  That  is,  the  homestead 
owner  may  have  one  or  more  lots  exempt  from  execution  sale, 
providing  they  do  not  exceed  a  certain  value;  and  if  the  prop- 
erty exceeds  the  value  limited,  the  excess  will  be  subject  to  the 
claims  of  creditors. 

The  statutes  also  vary  as  to  the  extent  of  this  limitation.  In 
one  State,  the  exemption  is  placed  at  five  hundred  dollars,  while 
in  another  state  the  amount  is  fixed  at  five  thousand  dollars. 
The  statutes  provide  the  method  by  which  the  surplus  value 
may  be  reached,  and  also  the  method  by  which  the  homestead 
exemption  may  be  protected.  This  is  accomplished  usually  in 
one  of  two  ways:  First,  property  to  the  amount  fixed  by  stat- 
ute or  of  the  value  limited  is  set  off  to  the  debtor,  and  the  bal- 
ance subjected  to  execution  sale;  or,  second,  in  case  of  urban 
property  where  a  partition  is  not  possible,  the  entire  property 
is  sold,  in  which  event,  the  amount  of  exemption  is  paid  the 
owner  of  the  homestead,  and  the  surplus  is  applied  to  satisfy 
the  execution  indebtedness. 

In  determining  the  A-alue  of  homestead,  the  value  of  im- 
provements is  added  to  the  value  of  the  land.191 


191In  Texas  the  exemption  as  to  value  is  on  the  lot  alone,  and  im- 
provements to  any  extent  are  exempt. 
Swayne  vs.  Chase   (Tex.),  30  S.  W.,  1049. 


118  FREEHOLD   ESTATES   NOT   OP    INHERITANCE. 

IN  WHAT  ESTATES? 

The  purpose  of  the  statute  being  to  preserve  a  home  to  the 
debtor,  it  makes  but  little  difference  what  title  to  the  property 
he  has,  providing  he  has  the  right  to  maintain  a  home  on  it.192 

The  statutes  usually  do  not  provide  what  estate  shall  be 
necessary  to  support  a  homestead,  but  usually  refers  to  prop- 
erty "owned"  by  a  debtor. 

IN  THE  ABSENCE  OF  A  STATUTORY  PROVISION  REQUIR- 
ING A  CERTAIN  ESTATE  TO  SUPPORT  A  HOMESTEAD,  IT  IS 
NOT  NECESSARY  THAT  ONE  CLAIMING  A  HOMESTEAD 
SHOULD  OWN  THE  PROPERTY  IN  FEE  SIMPLE;  IT  IS 
SUFFICIENT  THAT  THE  DEBTOR'S  INTEREST  IN  THE  PROP- 
ERTY IS  SUCH  THAT  IT  MAY  BE  SUBJECTED  TO  THE  PAY- 
MENT OF  HIS  DEBTS.193 

Thus,  it  was  held,  in  the  absence  of  a  statutoiy  provision, 
that  one  having  the  naked  possession  was,  as  against  every  one 
not  having  a  superior  title,  entitled  to  a  homestead  exemp 
tion.104 

An  estate  for  life,  an  estate  for  years,  an  equitable  estate, 
and  the  interest  of  one  in  possession  under  a  contract  of  pur- 
chase, have  each  been  held  sufficient  to  support  a  claim  ot 
homestead.193 

The  exemption,  however,  cannot  be  claimed  by  one  owning 
an  estate  in  the  property  which  does  not  entitle  him  to  posses- 
sion.190 A  remainderman  not  in  possession,  for  instance,  is 
not  entitled  to  a  homestead  exemption.197 

182Deere  vs.  Chapman,  25  111.,  610. 

Conklin  vs.  Foster,  57  111.,  107. 
'""Bartholomew  vs.  West,  2  Dill.,  293. 
194Spencer  vs.  Geissman,  37  Cal.,  99. 
195McKee  vs.  Wilcox,  11  Mich.,  358. 
196Stern  vs.  Lee,  115  N.  C.,  426. 
""Meigs  vs.  Dibble,  73  Mich.,  101. 

Stern  vs.  Lee,  115  N.  C.,  426;  26  L.  R.  A.,  814. 


FREEHOLD   ESTATES   NOT   OF   INHERITANCE.  119 

It  has  been  generally  held  that  a  homestead  may  be  had  in 
property  owned  in  common;198  but  in  some  States  the  contrary 
has  been  held  on  the  ground  that  it  would  be  inconvenient  to 
divide  the  interests  of  the  tenants  and  fasten  the  homestead 
on  one  of  such  interests.199  It  is  generally  held  that  a  home- 
stead will  not  arise  in  partnership  property;  since  it  is  prim- 
arily liable  for  partnership  debts  and  is  not  immediately  avail- 
able for  the  support  of  the  family  and  cannot  be  said  to  be 
owned  by  the  head  of  the  family  within  the  intent  of  homestead 
laws.200  In  some  States  the  exemption  is  allowable  in  partner 
ship  property.201 

AGAINST  WHAT  DEBTS  IS  THE  HOMESTEAD  PROTECTED? 

As  a  general  rule,  the  homestead  is  exempt  from  all  debts 
of  the  owner. 

There  are  a  number  of  exceptions  to  this  statement.  The 
following  are  some  of  the  privileged  debts  which,  in  many 
States,  are  prior  to  the  homestead  exemption : 

1.  The  statutes  usually  provide  that  the  homestead  shall 
be  liable  for  public  debts.    Thus,  the  homestead  may  be  sold 
to  enforce  the  payment  of  taxes  legally  assessed  against  it.202 

2.  It  has  been  held  that  the  statutes  do  not  affect  debts 
incurred  prior  to  the  passage  of  the  homestead  statute,  and 
that  a  provision  attempting  to  extend  the  exemption  debts 
incurred  prior  to  the  passage    of    the    act    was    unconstitu- 
tional as  an  impairment  of  the  obligation  of  contracts.203    But 

198Lozo  vs.  Sutherland,  38  Mich.,  168. 

Tarrant  vs.  Swain,  15  Kan.,  149. 

Allowable   in   property  held   by   entireties.    Shelton   vs.   Orr,   89 

Tenn.,  82;  12  L.  R.  A.,  514. 
109Thurston  vs.  Maddocks,  6  Allen,  430. 

Joyce  vs.  J.  I.  Chase  Threshing  Machine  Co.,  89  Tenn.,  337;  12  L. 

R.  A.,  519. 

-°°Pond  vs.  Kimball,  101  Mass.,  105. 
201Moyer  vs.  Drummond,  32  S.  C.,  165;  7  L.  R.  A.,  747. 
202Shell  vs.  Duncan,  31  S.  C.,  547;  5  L.  R.  A.,  821. 
203Morrison  vs.  Watson,  101  N.  C.,  332;  1  L.  R.  A.,  833. 


120  FREEHOLD   ESTATES    NOT   OF   INHERITANCE. 

the  authority  of  this  case  is  doubtful.  The  same  argument  was 
urged  as  to  the  effect  of  statutes  abolishing  imprisonment  for 
debt,  but  in  the  cases  involving  this  question  the  clear  weight 
of  authority  is  that  the  statutes  abolishing  imprisonment  for 
debt  affected  only  the  remedy  and  not  impair  the  obligation 
of  a  contract.  And  this  we  think  is  the  better  doctrine. 

3.  Valid  liens  on  the  property  before  it  acquires  the  char 
acter  of  a  homestead  may  be  enforced  again§t  it.    That  is,  tii«- 
debtor  cannot  by  moving  and  establishing  his  home  on  prop 
erty  defeat  the  existing  liens  or  any  vested  right  in  the  prop 
ei-ty.     Thus,  if  prior  to  the  time  the  homestead  was  estab- 
lished, the  property  had  been  levied  upon  under  a  valid  judg- 
ment, it  may  be  sold,  free  from  homestead  claims. 

A  contrary  rule  prevails  in  a  few  States,  and  in  such  States, 
if  the  debtor  occupies  the  property  as  a  homestead  at  any  time 
before  a  sale  on  the  execution,  he  may  claim  the  exemption.204 

Thus,  in  Mississippi  a  single  man  occupied  certain  premises 
as  a  home.  Under  the  statute  of  that  State,  not  being  the  head 
of  a  family,  he  was  not  entitled  to  the  homestead  exemption. 
The  property  was  levied  upon,  but  one  hour  before  the  sale  took 
place,  defendant  married.  The  court  held  that  he  thereby  be- 
came entitled  to  a  homestead  exemption.205 

4.  In  some  States,  the  homestead  is  subject  to  sale  under 
an  execution  upon  "causes  of  action  existing  at  the  time"  the 
homestead  is  acquired. 

Thus,  in  Vermont  it  was  held  that  the  homestead  was  not 
exempt  from  a  note  given  in  renewal  of  notes  outstanding 
when  the  homestead  was  acquired,  the  parties  to  the  notes  be- 
ing the  same.206 


:04Stone  vs.  Darnell,  20  Tex.,  11. 

20iTrotter  vs.  Dobbs,  38  Miss.,  198. 

-""Robinson  vs.  Leach,  67  Vt.,  128;  27  L.  R.  A.,  303. 


FREEHOLD   ESTATES   NOT   OF    INHERITANCE.  121 

5.  In  most  of  the  States  the  homestead  is  subject  to  the 
claim  of  the  vendor  of  the  homestead  property. 

The  justice  of  this  provision  is  at  once  apparent;  for,  until 
the  payment  of  the  purchase  money,  the  superior  right  and 
equities  are  in  favor  of  the  vendor.207 

6.  In  some  States  the  privileged  debts  are  described  as  the 
"debt  contracted"  or  "any  debt  or  liability  contracted"  or  "any 
debt  growing  out  of  or  founded  upon  a  contract,  express  or 
implied." 

In  some  States  under  a  construction  of  these  and  similar 
statutory  provisions,  it  has  been  held  that  the  exemption  does 
not  extend  to  claims  not  arising  out  of  contract,  and  the  home- 
stead may  be  sold  on  judgments  arising  out  of  an  action  ex 
delicto.208  But  in  Michigan,  under  a  statute  which  exempts 
the  homestead  from  liability  "for  any  debts  contracted,"  it  was 
held  that  a  homestead  was  exempt  on  a  judgment  on  a  tort.208 

7.  In  many  of  the  States  claims  for  labor  or  material  in 
erecting  buildings  on  or  improving  the  homestead  may  be  en- 
forced against  it. 

8.  The  homestead  is  ordinarily  subject  to  the  liens  created 
against  it  by  the  joint  act  of  husband  and  wife. 

Thus,  a  mortgage  made  by  the  husband  and  the  wife  on  the 
homestead  in  the  manner  required  by  statute  may  be  enforced 
against  it. 

In  other  States  various  debts  are  privileged;  but  it  is  un 
necessary  to  go  any  further  into  details  as  to  statutory  pro- 
vision of  each  State.210 

207Stone  vs.  Darnell,  20  Tex.,  14. 

"""See  cases  cited  in  Mertz  vs.  Berry,  101  Mich.,  32. 

209Mertz  vs.  Berry,  101  Mich.,  32;  24  L.  R.  A.,  789. 

Conroy  vs.  Sullivan,  14  111.,  451. 

210In  one  state  the  homestead  is  subject  to  a  claim  for  necessaries 
furnished  the  family. 


122  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

HOW  LOST. 

1.     By  ABANDONMENT. 

The  homestead  being  acquired  by  actual  occupancy,  it  fol- 
lows that  it  may  be  lost  by  the  removal  of  the  owner  and  his 
family  without  any  intention  to  return,  or  if  after  removal 
with  intent  to  return,  an  intent  is  formed  not  to  return.211 
On  a  removal  without  ammo  revertaudi  the  property  loses  its 
character  as  a  home  and  is  no  longer  within  the  protection  of 
the  statute. 

If  the  removal  by  the  owner  is  temporary  and  with  bona 
tide  intention  of  returning  and  re-establishing  his  home  on  the 
property,  he  is  not  considered  to  have  abandoned  the  home- 
stead.212 

While  the  force  and  equity  of  these  principles  are  at  once 
apparent,  they  are  oftentimes  extremely  difficult  to  apply. 

The  intent  of  the  owner  to  return  or  not  to  return  is  of 
course  a  mental  process  which  cannot  always  be  traced.  The 
nature  of  this  mental  process  can  only  be  discovered  in  the  acts 
or  declarations  of  the  owner,  and  the  question  of  intent  must 
be  determined  by  the  facts  existing  in  each  case.  Xo  general 
rule  can  be  stated  by  which  it  may  be  determined  what  facts 
will  warrant  an  inference  that  there  was  or  was  not  an  inten- 
tion to  abandon  the  homestead. 

In  arriving  at  the  actual  intent,  it  is  proper  to  consider  the 
length  of  time  the  owner  has  been  absent,  the  circumstances 
under  which  he  left,  any  declarations  he  may  have  made  as  to 
an  intention  to  abandon  the  property,  the  disposition  or 
arrangement  respecting  the  property  during  his  absence,  his 

'"Mallard  vs.  Bank,  40  Neb.,  784. 
^Rasholt  vs.  Mehus,  3  N.  D.,  513;   23  L.  R.  A.,  239. 
Lee  vs.  Mosley,  101  N.  C.,  311;  2  L.  R.  A.,  106. 


FREEHOLD   ESTATES    NOT   OF   INHERITANCE.  123 

actions  while  away  as  to  the  establishment  of  another  home, 
and  kindred  facts.213 

At  the  common  law,  the  husband  has  the  right  to  fix  the 
place  of  the  home,  so  that  as  a  general  rule,  the  husband  by 
compelling  the  wife  to  remove  to  a  new  home,  may  thereby  bar 
and  release  her  exemption  in  the  former  homestead.  This  is 
the  rule  supported  by  the  weight  of  authority,  and  it  makes  no 
difference  whether  the  wife  accompanies  the  husband  volun- 
tarily or  involuntarily.  , 

In  some  states  it  has  been  held  that  if  the  wife  accom- 
panies the  husband  as  a  result  of  his  coercion,  she  may  still 
claim  the  homestead  in  the  home  involuntarily  abandoned. 
2.     ALIENATION. 

As  a  general  rule,  a  husband  may  convey  his  property  as  he 
pleases,  and  his  grantee  will  acquire  all  his  title  subject  to  the 
wife's  dower,  if  she  does  not  join  in  the  deed. 

In  the  absence  of  a  statutory  restriction,  the  husband  may 
convey  his  right  in  the  homestead,  subject  to  the  wife's  dower 
and  right  of  homestead.  In  most  of  the  States,  however,  the 


"'Kaedingr    vn.    Joachimsthal,    98    Mich.     78. 

This  was  a  suit  by  complainants,  John  and  Augusta  Kaeding,  to 
restrain  defendants  from  carrying  on  proceedings  to  obtain  possession 
of  property  plaintiffs  claimed  as  a  homestead,  and  which  defendant 
claimed  title  to  under  an  execution  sale. 

It  appeared  on  the  hearing  that  Mrs.  Kaeding  in  1883  carried  on  a 
millinery  business,  and  in  that  year  the  property  in  question  was  pur- 
chased. In  1884  the  complainants  occupied  this  property  and  it  became 
a  homestead  under  the  Michigan  statutes.  In  1885  the  husband  not 
being  able  to  find  work,  the  wife  resumed  the  millinery  business,  and 
the  family  moved  to  another  part  of  the  city  of  Detroit  and  continued 
away  from  the  homestead  for  a  period  of  six  years.  After  filing  this 
bill,  complainants  returned  and  occupied  the  home.  On  the  hearing 
complainants  testified  that  they  had  a  continuing  intent  to  return  and 
occupy  the  home;  that  their  absence  was  only  temporary  and  until  such 
lime  as  the  husband  might  recover  from  his  sickness  and  find  work 
with  sufficient  remuneration  to  support  the  family  in  the  home.  The 
Supreme  Court  held  that  the  evidence  was  sufficient  to  warrant  a  find- 
ing that  the  homestead  was  not  abandoned. 


124  FREEHOLD   ESTATES   NOT   OF   INHERITANCE. 

statutes  provide  that  the  homestead  shall  not  be  aliened,  ex- 
cept by  the  joint  act  of  the  husband  and  the  wife.21* 

IN  ORDER  THAT  A  CONVEYANCE  OF  THE  HOMESTEAD 
MAY  BE  VALID,  IT  MUST  COMPLY  WITH  THE  STATUTE."1' 

If  the  statute  requires  the  joint  act  of  the  husband  and  wife, 
a  deed  by  the  husband  alone  is  void,  not  only  as  to  the  wife, 
but  also  as  to  the  husband.216 

When  the  statute  prescribes  the  manner  in  which  the  con- 
veyance shall  be  made,  it  must  be  carefully  followed;  for  any 
defect  in  acknowledgment  or  other  requirement  will  inval- 
idate the  instrument.217  A  conveyance  by  the  husband  alone, 
or  a  conveyance  by  the  husband  and  wife,  but  not  in  manner 
required  by  statute,  will  be  valid  if  made  to  secure  a  debt 
privileged  against  the  homestead  exemption.218 

It  has  been  held  that  a  subsequent  abandonment  of  the 
homestead  by  the  husband  and  wife  will  make  valid  a  prior 
conveyance  in  which  the  wife  did  not  join.219  This  is  not  the 
general  rule,  for  in  most  states  the  deed  is  invalid  for  all  pur- 
poses, and  will  not  become  valid  by  any  subsequent  acts  of 
the  parties,  less  than  a  conveyance  in  the  manner  required  by 
the  statute.220 

In  some  States  it  is  held  that  a  deed  by  the  husband  alone 
of  property  including  the  homestead  and  additional  property 

2I4Law  vs.  Butler,  44  Minn.,  482. 
-15King  vs.  Welborn,  83  Mich.,  195. 
210Amphlett  vs.  Hibbard,  29  Mich.,  297. 

=17Kitterlin  vs.  Milwaukee  Mechanics'  Mut.  Ins.  Co.,  134  111.,  637;  10 
L.  R.  A.,  220. 

Am.  Sav.  &  Loan  Assn.  vs.  Burghardt  (Mont.),  48  P.,  391. 
'"Investors  Mtg.  Co.  vs.  Lloyd   (Tex.),  33  S.  W.,  750. 

Cook  vs.  Higley,  10  Utah,  228. 
=19!Brown  vs.  Coon,  36  111.,  243. 
-"Phillips  vs.  Stanch,  20  Mich.,  369. 

The   subsequent   death   of    the  wife   will  not    make    valid     the 
grantee's  title. 


FREEHOLD   ESTATES   NOT   OF   INHERITANCE.  125 

is  valid  to  convey,  subject  to  the  wife's  dower,  so  much,  as  is 
without  the  homestead  right.  Thus,  in  Michigan,  where  the 
statute  gives  an  exemption  of  forty  acres,  it  was  held  that  a 
conveyance  of  eight}'  acres,  in  which  there  was  a  homestead, 
was  invalid  as  to  so  much  of  the  property  as  the  homestead 
right  covered,  and  valid  as  to  the  residue.221  But  in  some 
States  it  has  been  held  that  the  deed  is  void  as  to  the  entire 
tract  if  the  portion  exempt  as  a  homestead  on  account  of  its 
location  can  not  be  severed  from  the  balance.222  And  in  other 
cases  it  has  been  held  that  where  the  homestead  property  ex- 
ceeds the  value  allowed  by  the  statute,  a  transfer  or  mort- 
gage is  valid  as  to  the  excess.223 

-'Wallace  vs.  Harris,  32  Mich.,  379. 
---Sammon  vs.  Wood,  65  N.  W.,  529. 
"3JBank  vs.  Lyon,  52  Miss.,  181. 
Despain  vs.  Wagner,  163  111..  598. 


CHAPTER  IV. 

BIGHTS  AND  LIABILITIES  OF  LIFE  TENANTS. 

Before  taking  up  the  consideration  of  estates  less  than  a 
freehold,  it  is  perhaps  the  most  opportune  place  to  discuss  the 
relation  of  the  life  tenant  and  the  remainderman  to  each 
other,  and  briefly  consider  their  respective  rights  and  liabili- 
ties. 

The  principles  hereinafter  discussed  are  applicable  to  afl 
life  tenants,  and  the  same  principles  are  generally  applicable 
to  all  tenants  for  years,  or  at  will. 

The  tenant  for  life  is  entitled  to  the  possession  and  use  or 
the  land  during  the  continuance  of  his  estate.  This  right  to 
the  possession  and  use  does  not  confer  an  absolute  dominion 
over  the  property  for  the  life  of  the  tenant;  his  rights  are  lim- 
ited by  the  rights  of  the  remainderman  or  reversioner,  who, 
while  he  has  no  present  right  of  possession  or  to  the  use  of  the 
land,  nevertheless  is  the  owner  of  an  estate  in  it  and  is  entitled 
to  have  the  property  preserved  to  him. 

As  to  the  relationship  of  the  respective  owners,  it  may  be 
said  that: 

THE  ESTATES  OF  THE  LIFE  TENANT  AND  THAT  OF  THE 
REMAINDERMAN  OR  REVERSIONER  ARE  INDEPENDENT, 
DISTINCT  AND  CONSISTENT. 

The  proposition  that  the  estates  of  the  life  tenant  and  that 
of  the  remainderman  are  distinct  and  independent  is  evidenced 
in  many  different  rulings  of  the  courts. 

For  instance,  the  life  tenant  may  maintain  an  action  for 
damage  to  his  life  estate,  without  joining  the  remainderman 


RIGHTS   AXD    LIABILITIES   OF   LIFE   TENANTS.  127 

as  one  of  the  plaintiffs.  So,  a  levy  and  sale  of  the  remainder- 
man's estate  does  not  in  any  way  effect  the  life  tenant's  right 
to  control  and  possess  the  property  during  the  life  on  which 
the  estate  is  limited.1  Neither  will  an  adverse  possession  of 
the  property  start  the  statute  of  limitations  against  the  re- 
mainderman until  the  termination  of  the  life  estate.2 

That  the  estates  are  consistent  is  evidenced  by  the  fact  that 
the  life  tenant  cannot  by  virtue  of  his  possession  set  up  a  claim 
of  adverse  title  against  the  remainderman  or  reversioner.3 
Should  the  life  tenant  purchase  a  claim  of  title  from  a  third 
person,  he  may  not  set  it  up  against  the  remainderman;  for 
such  a  purchase  will  be  regarded  by  the  law  as  being  made 
partly  for  the  benefit  of  the  remainderman,  who  may  have  the 
benefit  of  it  on  contributing  his  proper  share  of  the  cost  of 
the  title.4 

The  rights  of  the  life  tenant  in  the  estate  may  be  stated  as 
follows: 

1.  THE  LIFE  TENANT  IS  ENTITLED  TO  THE  BENTS, 
PROFITS  AND  THE  ANNUAL  PRODUCT  OF  THE  PROPERTY 
DURING  THE  CONTINUANCE  OF  HIS  LIFE  ESTATE,  BUT 
MUST  NOT  WASTE  OR  ENCROACH  UPON  THE  CORPUS  OF 
THE  ESTATE. 

The  rights  of  the  tenant  in  the  product  of  the  property  and 
his  rights  in  the  property  itself  or  corpus,  are  quite  distinct  and 
different;  of  the  former,  he  is  absolute  owner,  of  the  latter,  he 
is  merely  a  tenant,  and.  like  other  tenants,  must  respect  the 
rights  of  those  who  are  entitled  to  enjoy  the  property  after  the 
termination  of  his  estate.  The  law  endeavors  to  protect  the 

'Gindratus  vs.  Western  R.,  19  L.  R.  A.,  839. 
"Storrs  vs.   Storrs,  58  Mich.,  55. 
'Whitney  vs.  Salter,  36  Minn.,  103. 
4Haskett  vs.  Maxey  (Ind.),  19  L.  R.  A.,  379. 


128  RIGHTS    AND    LIABILITIES    OF  LIFE    TENANTS. 

rights  of  both,  the  tenant  and  of  the  remainderman;  it  endeav- 
ors to  allow  the  tenant  a  reasonable  and  full  use  of  the  prop- 
erty during  his  term  and,  at  the  same  time,  to  preserve  the 
property  for  the  remainderman,  so  that  he  may  have  the  full 
benefit  of  it  on  the  termination  of  the  life  estate. 

2.  THE   LIFE   TENANT   MAY  CONVEY   HIS   ESTATE   AND 
HIS    GRANTEE    WILL    ACQUIRE    ALL    HIS    RIGHTS    IN    THE 
PROPERTY. 

The  life  tenant's  estate  is  also  subject  to  his  debts  and  may 
be  taken  on  an  execution. 

3.  THE    LIFE    TENANT    IS    ENTITLED    TO    REASONABLE 
ESTOVERS. 

The  life  tenant  may  cut  timber  to  be  used  on  premises  for 
fuel  and  for  repairing  buildings  and  fences.5 

4.  THE   LIFE   TENANT   IS   ENTITLED   TO   EMBLEMENTS. 

The  duration  of  the  life  estate,  depending  on  the  life  of  The 
tenant  or  of  some  third  person,  is  uncertain,  and  the  person 
planting  the  crops,  or  his  grantee,  is  entitled  to  them. 


'Smith  vs.  Jewett,  4O  N.  H..  417.      1   I..  R.  A.,  427. 

The  defendant,  Nancy  Jewett,  was  the  owner  of  a  life  estate  in  a 
farm,  and  leased  it,  with  privilege  of  cutting  firewood,  to  one  Bean. 
Defendant  Jewett  continued  to  occupy  the  house  on  the  premises,  but 
sublet  a  portion  of  it  to  Bean.  The  defendant  and  Bean  in  winter 
months  maintained  separate  fires  and  used  wood  from  the  premises. 
Complainant  then  filed  this  bill  to  restrain  defendant  from  committing 
waste  and  for  an  accounting  for  the  proceeds  of  the  estate.  The  court 
refused  to  issue  an  injunction  and  held  that  the  defendant  Jewett,  as 
a  life  tenant,  was  entitled  to  a  reasonable  quantity  of  wood  for  her- 
self, family  and  necessary  servants,  and  that  this  right  could  be  as- 
signed to  her  tenant.  The  court  also  held  that  the  defendant,  as  life 
tenant,  was  entitled  absolutely  to  the  income  of  the  property  and  that 
she  could  not  be  compelled  to  account  for  the  same. 

"Bradley  vs.  Bradley,  56  Conn.,  374;   1  L.  R.  A.,  427. 


RIGHTS  AND  LIABILITIES  OF  UIFE  TENANTS.          129 

will  be  entitled  to  remove  them  at  their  maturity,  al- 
though the  estate  for  life  was  determined  by  the  death  of  the 
person,  on  whose  life  the  estate  was  limited.7  Under  such 
circumstances  the  person  entitled  may  enter,  cultivate  and 
harvest  the  crop  after  the  termination  of  the  life  estate. 

This  rule  does  not  apply  if  the  life  estate  is  terminated  by 
the  act  of  the  life  tenant.  Thus,  where  the  estate  was  granted 
to  a  widow  for  life  or  until  she  married  again,  on  her  marriage 
she  would  not  be  entitled  to  emblements.8 

The  doctrine  as  to  emblements  is  applicable  to  all  tenancies 
of  uncertain  duration. 

The  life  tenant  being  entitled  to  all  the  rents  and  profits, 
has  certain  reciprocal  duties  which  he  owes  to  the  remainder- 
man or  reversioner. 

1.  THE  LIFE  TENANT  MUST  PAY  ALL  ORDINARY 
TAXES  ASSESSED  UPON  THE  PROPERTY  DURING  THE  CON- 
TINUANCE OF  HIS  ESTATE. 

'Bradley   vs.   Builey,   56   Conn.,  374; 

This  was  an  action  of  trespass  brought  by  plaintiff  against  defen- 
dant for  entering  upon  land  in  possession  of  plaintiff  and  destroying  a 
crop  of  rye  growing  thereon. 

John  R.  Bradley  was  life  tenant  of  the  land  in  question,  and 
defendant  was  the  owner  of  an  estate  in  remainder  and  was  entitled 
to  possession  on  the  death  of  said  John  R.  Bradley. 

In  April,  1885,  said  John  R.  Bradley  gave  plaintiff  a  lease  for  three 
years,  which  was  terminated  on  September  20th,  same  year,  by  the 
death  of  Bradley.  On  the  18th  of  September,  two  days  previous  to  the 
death  of  the  said  Bradley,  plaintiff  sowed  the  crop  of  rye  in  question. 
On  June  20th,  1886,  defendant  entered  and  plowed  up  and  destroyed  said 
rye  crop  then  maturing.  Plaintiff  then  commenced  this  action  for  the 
loss  of  the  crop  and  recovered  a  judgment  in  the  lower  court.  Defend- 
ant appealed.  Defendant  insisted  that  plaintiff  at  the  time  he  sowed  the 
crop  knew  that  his  landlord  was  in  a  dying  condition,  and  sowed  it  for 
the  purpose  of  defrauding  the  remainderman  of  the  use  of  the  land 
in  whiqch  the  crop  was  sowed. 

The  court  in  affirming  the  judgment  of  the  lower  court,  held  that 
the  tenant's  estate  being  determined  by  the  act  of  God,  he  was  entitled 
to  reap  the  crop  at  maturity,  and  that  the  fact  that  he  had  reason  to 
believe  that  the  estate  would  be  determined  before  the  crop  matured 
would  not  defeat  his  right  to  emblements. 
*Debow  vs.  Colfax,  10  N.  J.  L.,  128. 
See  ante,  page  21. 


130          RIGHTS  AND  LIABILITIES  OF  LIFE  TENANTS. 

This  obligation  does  not  extend  to  assessments  for  perma- 
nent improvements  to  the  property.9 

Permanent  improvements  (sometimes  called  betterments), 
are  deemed  to  increase  the  value  of  the  land,  and  for  that  rea- 
son equity  will  apportion  the  tax  between  the  life  tenant  and 
the  remainderman.10 

2.  THE   TENANT   FOR  LIFE    MUST    PAY    THE    INTEREST 
ON    ENCUMBRANCES    WHICH    ACCRUES    DURING    THE    CON- 
TINUANCE OF  HIS  ESTATE. 

There  is  no  obligation  on  the  part  of  the  life  tenant  to  pay 
anything  on  the  principal,  but  if  he  does  so,  the  remainderman 
may  be  compelled  to  contribute  the  amount  paid,  less  the 
present  value  of  the  interest,  for  the  life  of  the  person  upon 
whom  the  estate  is  limited.11 

3.  THE    LIFE    TENANT  MUST     ALSO     KEEP     THE     PROP- 
ERTY   IN    REPAIR   AND    IN  AS  GOOD    CONDITION,   REASON- 
ABLE WEAR  AND  TEAR  AND   DAMAGE    BY   THE    ELEMENTS 
EXCEPTED,  AS  WHEN  HE  ENTERED  INTO  POSSESSION. 

If  the  life  tenant  makes  permanent  and  valuable  improve- 
ments, they  are  deemed  to  be  made  for  his  own  benefit  and  no 
claim  can  be  made  for  them  against  the  owner  of  the  inherit- 
ance.12 

4.  THE   LIFE   TENANT  MUST  NOT   COMMIT  WASTE." 
Waste  is  either  voluntary  or  permissible,  being  voluntary 

when  the  waste  complained  of  is  the  result  of  a  deliberate  or 
positive  act,  and  permissible  when  the  injury  complained  of  is 

"Roche  vs.  Waters,  72  Md.,  264;  7  L.  R.  A.,  533. 

Plympton  vs.  Boston  Dispensary,  106  Mass.,  544. 

Thomas  vs.  Evans,  105  N.  Y.,  651. 

'"Peck  vs.  Sherwood,  56  N.  Y..  615. 
"Mosely  vs.  Marshall,  27  Barb.  (N.  Y.),  42. 

Whitney  vs.  Salter,  36  Minn.,  103. 
"Schier  vs.  Eldridge,  103  Mass.,  345. 
"For  a  further  discussion  as  to  waste,  see  post  Landlord  &  Tenant. 


RIGHTS  AND  LIABILITIES  OF  LIFE  TENANTS.          131 

the  result  of  an  omission  to  do  what  is  necessary  to  prevent  an 
injury  to  the  property.14 

It  is  impossible  to  point  out  to  the  student  what  specific 
acts  constitute  voluntary  waste. 

The  same  act  under  some  circumstances  might  be  waste, 
which  under  other  circumstances  might  be  a  positive  benefit  to 
the  inheritance.  Thus,  in  England,  where  trees  are  scarce,  the 
cutting  of  timber  by  the  life  tenant  might  inflict  an  injury  to 
the  estate;  in  America,  in  some  localities  the  clearing  away  of 
the  timber  might  be  a  benefit. 

TO  CONSTITUTE  VOLUNTARY  WASTE,  THE  ACTS  COM- 
PLAINED OF  MUST,  UNDER  THE  CIRCUMSTANCES  OF  EACH 
PARTICULAR  CASE,  INFLICT  A  LASTING  DAMAGE  TO  THE 
INHERITANCE,  OR  THEY  MUST  TEND  TO  DESTROY  OB, 
LESSEN  THE  VALUE  OF  THE  INHERITANCE." 

The  life  tenant  is  not  responsible  for  injuries  which  are  the 
result  of  the  act  of  God  or  of  a  public  enemy,  but  is  responsible 
for  all  acts  caused  by  his  own  carelessness  or  negligence,  or 
the  negligence  or  carelessness  of  those  for  whom  he  is  re- 
sponsible. 

We  will  briefly  call  the  student's  attention  to  a  few  specific 
acts  of  the  life  tenant  which  may  amount  to  voluntary  waste. 

TREES. 

It  has  already  been  stated  that  trees  are  a  part  of  the  inher- 
itance. While  they  are  the  product  of  the  soil,  yet  they  are 
produced  so  slowly  that  they  are  regarded  as  part  of  the  inher- 
itance itself,  and,  under  most  circumstances,  impart  value  to  it. 
We  have  seen  that  the  life  tenant  is  entitled  to  cut  trees  neces- 
sary for  the  temporary  enjoyment  of  his  estate,  that  is  for 
reasonable  estovers.  Ordinarily,  if  the  tenant  makes  a  more 

"Stevens  vs.  Rose,  69  Mich.,  259. 
"Dawson  vs.  Coffman,  24  Ind.,  220. 


132          RIGHTS  AND  LIABILITIES  OF  LIFE  TENANTS. 

extended  use  of  the  trees  than  that  allowed  for  his  reasonable 
enjoyment  of  the  property, — that  is,  for  repairs  and  for  fuel  to 
be  used  on  the  property, — he  encroaches  on  the  inheritance, 
and  is  guilty  of  voluntary  waste. 

It  is  well  settled  that  it  is  voluntary  waste  for  the  tenant 
to  cut  trees  for  sale,  or  for  any  purpose  not  connected  with  the 
land.16  If  the  tenant  cuts  the  timber  for  a  purpose  not  con- 
nected with  the  land,  the  title  to  it  is  in  the  remainderman  or 
reversioner,  and  an  action  of  replevin  may  be  maintained  by 
him  for  its  recovery. 

In  many  districts  in  this  country,  either  by  custom  or  by 
reason  of  the  uncultivated  condition  of  the  land,  the  above  rule 
is  not  in  force.  Where  the  removal  of  the  trees  is  necessary  for 
the  proper  cultivation  of  the  soil,  and  where  such  removal 
would  not  damage  but  be  a  benefit  to  the  inheritance,  waste  is 
not  committed  ff  it  is  done  in  conformity  with  good  hus- 
bandry.17 

In  determining  the  question  whether  or  not  a  given  act  of 
cutting  timber  is  waste,  it  is  proper  to  take  into  consideration 
the  relative  amount  of  cleared  and  wooded  land,  the  customs 
of  the  community  and  the  requirements  of  good  husbandry.18 
It  is  a  question  for  the  court  or  jury  to  determine  whether, 
under  the  particular  circumstances,  the  acts  of  the  life  tenant 
amount  to  waste.  The  life  tenant  may  be  permitted  by  the 
terms  of  the  grant  to  commit  what  under  the  usual  conditions 
would  be  considered  waste,  and  under  such  circumstances,  he 
is  said  to  hold  his  life  estate  "without  impeachment  for  waste." 

But  a  tenant  "without  impeachment  for  waste"  may  not 
commit  wanton  and  deliberate  waste.19 

"Hubbard  vs.  Shaw,  94  Mass.,  120. 

Webster  vs.  Peet,  97  Mich.,  326. 
"Davis  vs.  Clark,  40  Mo.,  515. 

Sayers  vs.  Hoskinson,  110  Pa.  St.,  473. 
"Cratfley  vs.  Timberlake,  2  Ird.  Eq.  (N.  C.),  460. 
"Clement  vs.  Wheeler,  25  N.  H.,  361. 


RIGHTS  AND  LMIBILITIES  OF  LIFE  TENANT'S.  133 

SOIL. 

The  life  tenant  may  make  any  reasonable  use  of  the  soil; 
but  he  must  not  exhaust  it  by  improper  tillage.  He  may  cul- 
tivate the  land  in  any  manner  consistent  with  good  husbandry. 

A  use  of  the  land  which  is  contrary  to  the  rules  of  good 
husbandry  and  which  works  any  injury  to  the  soil  is  waste. 

Thus,  the  working  of  a  field  contrary  to  the  established 
rotation  of  crops  was  held  to  be  waste.20 

MINES. 

The  life  tenant  may  not  open  new  mines;  but  he  may  con- 
tinue to  work  mines  open  at  the  commencement  of  his 
estate.21  It  has  been  held  that  while  a  life  tenant  may  not  open 
new  mines,  yet  he  may  sink  a  new  shaft  to  penetrate  into  a 
seam  or  vein  already  opened.22 

It  has  been  held  that  the  life  tenant  has  no  right  to  work 
mines  which  were  completely  abandoned  prior  to  the  com- 
mencement of  his  estate,  where  the  abandonment  was  for  the 
benefit  of  the  estate;  but  where  the  abandonment  was  occa- 
sioned for  the  want  of  a  market,  it  was  intimated  that  the  life 
tenant  might  work  the  mine  without  committing  waste.23 

The  rule  as  to  mines  also  applies  to  gravel  pits,  quarries  and 
clay  pits.  The  product  of  mines,  quarries  and  pits  already 
opened  are  regarded,  not  as  a  part  of  the  corpus,  but,  as  a  part 
of  the  profits  of  the  estate,  and,  as  such,  belong  to  the  life 
tenant.  Thus  it  was  held  that  a  life  tenant  might  work  an  open 
salt  or  oil  well  or  mine  even  to  exhaustion  without  an  account- 
ing, but  might  not  open  new  wells  or  mines.24 

20Darden  vs.  Cowper,  7  Jones  (N.  C.),  210. 

Chapel  vs.  Hull,  60  Mich.,  167. 

"Marshall  vs.  Mellon,  179  Pa.,  371;  35  L.  R.  A.,  816. 
"Crouch  vs.  Puryear,  I.  Rand.  (Va.),  258. 

Billing  vs.  Taylor,  27  Mass.,  460. 

"Gaines  vs.  Green  Pond  Iron  Mining  Co.,  32  N.  J.  H.,  68. 
"Williamson  vs.  Janes,  43  W.  Va.,  562;  38  L.  R.  A.,  694. 


134          RIGHTS  AND  LIABILITIES  OF  LIFE  TENANTS. 
BUILDINGS. 

The  life  tenant  must  keep  the  buildings  and  fences  on  the 
estate  in  good  repair,  and  for  this  purpose  he  may  cut  and  use 
the  timber  on  the  land.  If  the  tenant  permits  the  buildings  to 
get  out  of  repair,  he  is  guilty  of  permissive  waste,  or  if  he  tears 
them  down  or  does  other  injurious  acts,  he  commits  voluntary 
waste. 

The  tenant  may  make  slight  alterations,  but  he  must  not 
thereby  change  the  character  of  the  building.25 

At  the  old  common  law,  the  tenant  was  guilty  of  waste  if 
he  committed  certain  alterations.  A  broader  rule  has  now 
been  adopted,  and  a  life  tenant  may  make  alterations  and 
changes  in  the  building,  providing  he  does  not  damage  the 
inheritance.  Under  the  old  common  law  rule,  a  life  tenant 
could  not  erect  a  new  building  on  the  estate  without  commit- 
ting waste;  under  the  rule  as  now  adopted,  such  erection  is  not 
waste,  unless  an  injury  to  the  inheritance.26 

REMEDY  FOR  WASTE. 

At  the  common  law,  a  tenant  for  life  whose  estate  arose 
from  a  grant,  was  not  prohibited  from  committing  waste,  since 
the  law  extended  only  to  acts  of  tenants  by  dower  or  courtesy. 
It  was  presumed  at  the  common  law  that  if  it  was  intended  to 
prohibit  waste,  the  grant  creating  the  estate  would  expressly 
contain  such  a  provision. 

The  estates  of  courtesy  and  dower  being  created  by  law,  of 
course  no  expression  or  provision  as  to  waste  could  be  ex- 
pected, and  the  common  law  protected  the  remainderman  by 
prohibiting  waste.  The  defects  in  the  common  law  in  this 

"Hasty  vs.  Wheeler,  12  Me.,  434. 
"Winship  vs.  Pitts,  3  Paige  (N.  Y.),  259. 
Pynchon"  vs.  Stearns,  52  Mass.,  304. 


RIGHTS  AND  LIABILITIES  OF  LIFE  TENANTS.          135 

respect  were  supplied  by  the  statutes  of  Marlbridge  and  Glou- 
cester, which  made  all  tenants  for  life  or  years  liable  for  waste. 

Statutes  have  been  passed  in  all  the  States  based  on  the 
statutes  named,  and  the  student  must  consult  the  statutes  of 
his  own  State  in  order  to  determine  the  exact  remedy  for  waste. 
As  a  general  rule,  it  may  be  said  that  where  waste  has  been 
committed,  the  remainderman  or  reversioner  may  sue  and 
recover  the  damage  to  the  inheritance.  • 

If  the  waste  has  not  been  committed,  but  is  merely  threat- 
ened, the  tenant  may  be  enjoined  from  its  commission  by  an 
injunction  from  a  court  of  competent  jurisdiction. 

Under  some  of  the  statutes,  the  tenant  committing  waste 
is  liable  for  treble  damages. 


CHAPTER  V. 

ESTATES  LESS  THAN  A  FREEHOLD. 

We  come  now  to  the  consideration  of  interests  connected 
with  and  growing  out  of  real  property,  which,  by  the  law,  are 
regarded  as  inferior  to  freehold  estates.  These  interests  are 
known  as  chattels  real,  or  as  personal  interests  in  real  property. 

CHATTELS  REAL  ABE  ESTATES  IN  LAND  LESS  THAN  A 
FREEHOLD.1 

The  principal  example  of  this  class  of  property  is  an  estate 
for  years. 

"These  Interests  are  called  chattels  real,"  says  Blackstone, 
"as  being  interests  issuing  out  of  or  annexed  to  real  estate; 
of  which  they  have  one  quality,  viz.,  immobility,  which  de- 
nominates them  real;  but  want  the  other,  viz.,  a  sufficient  inde- 
terminable duration,  and  this  is  what  constitutes  them  chattels. 
The  utmost  period  for  which  they  can  last  is  fixed  and  determ- 
inable,  either  for  such  a  space  of  time  certain,  or  till  such  a 
particular  sum  of  money  be  raised  out  of  such  a  particular 
income;  so  that  they  are  not  equal  in  the  eye  of  the  law  to 
the  lowest  estate  of  freehold  a  lease  for  another  life;  their 
tenants  were  considered  upon  feudal  principles  as  merely 
bailiffs  or  farmers;  and  the  tenant  of  the  freehold  might  at  any 
time  have  destroyed  their  interest  till  the  reign  of  Henry 

vm."2 

'Knapp  vs.  Jones,  143  111.,  375. 
'Blackstone  Com.,  375. 

136 


ESTATES  LESS  THA'N  A  (FREEHOLD.  137 

This  classification  which  regards  an  estate  of  nine  hun- 
dred and  ninety-nine  years  as  inferior  to  an  estate  for  the  life 
of  another,  as  indicated  by  the  quotation  arises  out  of  condi- 
tions which  existed  under  the  feudal  system.3  While  these 
conditions  no  longer  exist,  the  distinction  and  classification  of 
property  resulting  therefrom  still  continues  except  where 
changed  by  statute. 

In  a  few  States,  by  statute  an  estate  for  ninety-nine  years 
is  now  given  the  attributes  of  a  freehold  estate.4 


""But  the  most  remarkable  exception  to  the  original  rule  occurs  in 
the  case  of  a  lease  of  lands  or  houses  for  a  term  of  years.  The  interest 
which  the  lessee,  or  person  who  has  taken  the  lease,  possesses,  is  not 
his  real,  but  his  personal  property;  it  is  but  a  chattel,  though  the  rent 
may  be  only  nominal,  and  the  term  ninety  or  even  a  thousand  years. 
This  seeming  anomaly  is  thus  explained.  In  the  early  times,  to  which 
we  have  referred,  towns  and  cities  were  not  of  any  very  great  and 
general  importance;  their  influence  was  local  and  partial,  and  their  laws 
and  customs  were  frequently  peculiar  to  themselves.  Agriculture  was 
then,  though  sufficiently  neglected,  yet  still  of  far  more  importance 
than  commerce,  and  from  the  necessities  of  agriculture  arose  many  of 
our  ancient  rules  of  law.  That  the  most  ancient  leases  must  have  been 
principally  farming  leases  is  evident  from  the  specimens  of  which 
copies  still  remain,  and  also  from  the  circumstance  that  the  word  farm 
applies  as  well  to  anything  let  on  lease,  or  let  to  farm,  as  to  a  farm 
house  and  the  lands  belonging  to  it.  Thus  we  hear  of  farmers  of  tolls 
and  taxes,  as  well  as  of  farmers  engaged  in  agriculture.  Farming  in 
those  days  required  but  little  capital,  and  farmers  were  regarded  more 
as  bailiffs  or  servants,  accountable  for  the  profits  of  the  land  at  an 
annual  sum,  than  as  having  any  property  of  their  own.  If  the  farmer 
was  ejected  from  his  land  by  any  person  other  than  his  landlord,  he 
could  not,  by  any  legal  process,  again  obtain  possession  of  it.  His  only 
remedy  was  an  action  for  damages  against  his  landlord,  who  was 
bound  to  warrant  him  quiet  possession.  The  farmer  could,  therefore, 
be  scarcely  said  to  be  the  owner  of  the  land,  even  for  the  term  of  the 
lease;  for  his  interest  wanted  the  essential  incident  of  real  property, 
the  capability  of  being  restored  to  its  owner.  Such  an  interest  in  land 
had,  moreover,  nothing  military  or  feudal  in  its  nature,  and  was,  con- 
sequently, exempt  from  the  feudal  rule  of  descent  to  the  eldest  son  as 
heirs  at  law.  Being  thus  neither  real  property,  nor  feudal  tenement,  it 
could  be  no  more  than  a  chattel;  and  when  leases  became  longer,  more 
valuable  and  more  frequent,  no  change  was  made;  but  to  this  day  the 
owner  of  an  estate  for  a  term  of  years  possesses  in  law  merely  a  chat- 
tel. His  household  estate  is  only  his  personal  property,  however  long 
may  be  the  term  of  years,  or  however  great  the  value  of  the  premises 
comprised  in  his  lease.''  Williams  on  Real  Property,  9  Eng.  Ed.,  page  a. 
'McLean  vs.  Rockey,  3  McLean,  U.  S.,  235. 


138  ESTATES  LESS  THAN  A  'FREEHOLD. 

Out  of  this  classification  of  real  property  grow  some  im- 
portant results.  •  At  the  common  law,  livery  of  seisin  was 
necessary  to  be  made  upon  every  grant  of  a  freehold  estate. 

Livery  of  seisin  was  a  public  ceremony  on  the  land,  by 
which  the  corporeal  possession  of  the  land  was  invested  in 
the  feoffee.  It  was  impossible  to  deliver  this  possession  to  the 
grantee  of  an  estate  of  freehold,  to  commence  in  the  future, 
and  it  follows  that  at  the  common  law  it  was  impossible  to 
create  a  freehold  estate  to  commence  in  the  future. 

In  the  case  of  an  estate  for  years,  it  not  being  a  freehold, 
livery  of  seisin  was  not  necessary,  and  the  estate  might  be 
granted  to  commence  in  future. 

A  tenant  for  years  is  therefore  said  not  to  be  seised  of  lands, 
but  on  his  entry  upon  the  leased  premises  he  is  said  to  be 
possessed  not  of  the  land  but  of  a  term  of  years. 

This  result  growing  out  of  the  old  method  of  transferring 
property  is  still  of  some  importance. 

The  seisin  of  the  property  not  being  in  the  tenant  for  years, 
it  still  continues  in  the  owner  of  the  freehold  or  reversioner. 
This  being  so,  it  follows  that  the  owner  of  the  reversion  being 
still  seised  of  the  property,  his  wife,  as  already  stated,  will 
be  entitled  to  dower,  even  though  his  right  to  possession  did 
not  accrue  during  the  coverture.5 

But  if  the  reversioner's  estate  is  preceded  by  an  estate  for 
life  (freehold)  and  his  right  to  possession  does  not  accrue 
during  his  lifetime,  his  wife  is  not  entitled  to  dower. 

So  chattels  real  being  personal  interests  in  real  property, 
pass,  on  the  death  of  the  owner,  to  the  personal  representa- 
tive, and  not  to  the  heir,  and  when  sold  on  execution  must 

•See  Ante  dower,  page  74. 


LANDLORD   AND   TENANT.  139 

be  sold  in  accordance  with,  the  statutes  regulating  the  sale  of 
personal  property.6 

With  this  introduction  as  to  the  character  of  an  estate  for 
years,  we  may  now  proceed  to  a  discussion  of  the  estate. 

AN  ESTATE  FOB  YEARS  IS  ONE  GRANTED  FOR  A  CER- 
TAIN DETERMINATE  PERIOD. 

It  is  not  necessary  that  the  determinate  period  should  be 
a  year  or  more;  for,  as  Blackstone  says:  "If  the  lease  be  but 
for  half  a  year  or  a  quarter  or  any  less  time,  the  lessee  is 
respected  as  a  tenant  for  years,  and  is  styled  so  in  some  legal 
proceedings;  a  year  being  the  shortest  term  the  law  takes 
notice  of".7 

The  person  granting  an  estate  for  years  is  usually  called 
the  lessor  or  landlord,  and  his  grantee  is  called  the  lessee  or 
tenant. 

LANDLORD  AND  TENANT. 
THE  RELATION  OF  LANDLORD  AND  TENANT. 

It  is  important  to  a  clear  understanding  of  this  subject,, 
to  define  at  the  outset  what  the  relation  of  landlord  and  ten- 
ant consists  of,  and  to  ascertain  what  are  its  essential  charac- 
teristics. Various  rights,  duties  and  responsibilities  spring  out 
of  the  relation  itself,  not  only  as  between  the  parties  to  it, 
but  also  as  between  the  parties  and  those  who  are  strangers 
to  the  contract.  Many  rights,  duties  and  responsibilities  are 
inherent  in  the  relation,  irrespective  of  the  particular  pro- 
visions of  the  lease  contract. 

In  our  system  of  law,  the  word  tenant,  in  its  broadest  sense> 
is  applied  to  any  person  who  has  lawful  possession  of  any  land, 

"Buhl  vs.  Kenyon,  11  Mich.,  249. 
72  Blk.,  139. 


140  LANDLORD   AND   TENANT. 

or  legal  estate  therein,  or  right  issuing  from,  or  appurtenant 
to,  land. 

Thus,  we  have  tenants  in  fee,  tenants  for  life,  tenants  in 
dower,  tenants  by  the  curtesy,  tenants  for  years,  tenants  at 
will,  and  by  sufferance,  etc.  In  the  broad  signification  of  the 
word,  a  tenant  is  one  who  holds  a  rightful  possession,  but,  in 
the  limited  sense  in  which  the  word  is  used,  as  the  correlative 
of  landlord,  it  means  one  who  has  acquired  by  a  contract,  tech- 
nically called  a  lease,  a  right  to  possession  from  the  one  who  is 
called  landlord,  to  whom  the  possession  of  the  property  will 
revert  at  the  expiratipn  of  the  tenant's  term.  Landlord  is  the 
correlative  of  the  word  tenant,  and  there  can  be  no  landlord 
without  a  tenant.  By  granting  his  right  of  possession,  not 
his  title,  to  another  upon  terms  and  for  a  time  mutually 
agreed  upon  by  a  contract  called  the  lease,  he  becomes  the 
landlord  and  the  other  the  tenant,  and  the  relation  is  estab- 
lished. From  this  statement,  the  following  propositions  fol- 
low: 

THE  RELATION  OF  LANDLORD  AND  TENANT  ALWAYS 
ARISES  OUT  OF  A  CONTRACT.  THE  SUBJECT  MATTER  OF  THE 
CONTRACT  IS  THE  RIGHTFUL  POSSESSION  OF  LAND  OR  OF 
SOME  INTEREST  THEREIN  OR  OF  SOME  RIGHT  SPRINGING 
OUT  OF  OR  APPURTENANT  TO  LAND,  AND  THE  ESSENCE  OF 
THIS  CONTRACT  CONSISTS  IN  THE  TRANSFER  OF  THE  LAND- 
LORD'S RIGHT  OF  POSSESSION  TO  THE  TENANT. 

As  this  relation  arises  in  contract,  so  also  it  subsists  in  a 
continuing  contract,  and  is  liable  to  be  destroyed  by  a  breach 
of  those  parts  of  the  contract,  the  fulfillment  of  which  either 
the  law  has  made,  or  the  parties  have  expressly  agreed  shall 
be,  essential  to  its  continuance  in  force,  and  hence  are  called 
conditions.  A  breach  of  one  of  these  conditions  by  one  party 
absolves  the  other  from  his  obligations  under  the  contract, 
and  at  his  option  terminates  the  relation.  From  the  proposi- 


LANDLORD   AND  TENANT.  141 

tion  that  the  relation  of  landlord  and  tenant  must  subsist  in 
a  continuing  contract,  it  results  that  there  must  remain  in 
the  landlord  a  right  to  resume  possession,  under  certain  con- 
ditions. This  is  called  the  landlord's  reversion,  or  right  of  re- 
entry. It  may  arise  at  a  certain  time  which  is  fixed  by  the 
lease,  or  it  may  be  a  mere  contingent  right  growing  out  of  a 
possible  forfeiture  of  the  lease  by  the  tenant  on  account  of 
the  breach  of  one  of  its  essential  conditions.  For  a  lease  may 
be  perpetual,8  or  for  the  whole  term  to  which  the  landlord  is 
entitled,  in  which  case  the  landlord  would  never  regain  pos- 
session of  the  thing  leased,  unless  the  tenant  should  forfeit 
his  lease  by  a  breach  of  an  essential  condition,  but  there  will 
still  be  a  tenancy  so  long  as  a  possible  reversion  remains  in 
the  landlord,  but  without  this  possible  reversion,  the  relation 
cannot  exist. 

THE  ESSENTIAL  OBLIGATION  OF  THE  LANDLORD'S  CON- 
TRACT IS  THAT  HE  IS  THE  LEGAL  OWNER  OF  THE  POSSES- 
SION WHICH  HE  ASSUMES  TO  CONVEY,  AND  THAT  HE  WILL 
DEFEND  THE  LEGALITY  OF  THIS  POSSESSION  DURING  THE 
EXISTENCE  OF  THE  LEASE. 

In  every  carefully  drawn  lease  there  is  contained  an  under- 
taking on  the  part  of  the  landlord  that  the  tenant,  so  long  as 
he  performs  the  contract  on  his  part,  shall  peaceably  and 
quietly  enjoy  the  possession  which  the  lease  assumes  to  convey 
during  his  term.  This  is  called  the  covenant  for  quiet  en- 
joyment. But  this  undertaking  on  the  part  of  the  landlord 
is  more  than  a  mere  personal  covenant;  it  is  a  condition,  the 
breach  of  which  absolves  the  tenant  from  all  obligations  under 
the  lease.  And  inasmuch  as  it  is  an  essential  part  of  the  lease, 
it  is  an  implied  covenant  in  every  lease,  to  the  fulfillment  of 
which  the  landlord  is  bound,  whether  it  is  expressed  in  the 
lease  or  not. 

'White  vs.  Fuller,  38  Verm.,  193. 


142  LANDLORD   AND   TENANT.    • 

The  covenant  for  quiet  enjoyment  is  not  to  be  construed 
literally,  but  in  its  legal  sense.  It  is  not  an  undertaking  that 
the  tenant's  possession  will  not  be  disturbed  by  trespassers 
or  wrongdoers,  nor  does  it  offer  any  indemnity  against  the 
acts  of  such  persons. 

THE  COVENANT  FOB  QUIET  ENJOYMENT  MEANS  THAT 
THE  LANDLORD  GUARANTEES  OR  WARRANTS  THAT  THE 
RIGHT  TO  POSSESSION  WHICH  HE  ASSUMED  TO  CONVEY  BY 
THE  LEASE  IS  A  LEGAL  ONE,  AND  THAT  HE  WILL  DEFEND 
IT  IN  THE  COURTS  IF  IT  IS  ASSAILED  THERE,  WHETHER 
BY  ONE  CLAIMING  UNDER  HIM,  OR  BY  ONE  CLAIMING 
SUPERIOR  TITLE  TO  HIS,  OR,  AS  IT  IS  COMMONLY  SAID,  BY 
PARAMOUNT  TITLE. 

Therefore,  if  an  action  is  brought  to  dispossess  or  deprive 
the  tenant  of  the  whole  or  a  part  of  that  which  is  assured  to 
him  by  his  lease,  either  by  one  who  claims  under  his  landlord, 
or  by  one  who  claims  by  title  paramount  to  his  landlord's 
title,  the  tenant  is  not  bound  to  assume  the  defense  of  the 
action.9  He  may,  by  giving  the  landlord  seasonable  notice  of 
the  action,  cast  upon  him  the  burden  of  defending  the  title. 
If  the  landlord  fails  in  this  defense,  the  relation  of  landlord 
and  tenant  is  at  an  end,  and  the  tenant  is  absolved  from  his 
obligations  under  the  lease,  and  the  landlord,  having  been 
properly  notified  by  the  tenant  to  defend,  a  judgment  against 
the  title  is  conclusive  in  favor  of  the  tenant  and  against  the 
landlord  in  any  proceedings  which  may  be  had  thereafter 
between  them. 

THE  ESSENTIAL  OBLIGATION  OF  THE  TENANT'S  CON- 
TRACT IS  THAT  HE  WILL  ON  HIS  PART  BE  LOYAL  TO  HIS 
LANDLORD  AND  TO  THE  TITLE  AND  POSSESSION  WHICH  HE 
RECEIVED  AT  HIS  HANDS. 

"Colin  vs.  Norton,  57  Conn.,  480;  5  L.  R.  A.,  572. 


LANDLORD   AND   TENANT.  143 

The  word  "loyal"  used  in  this  proposition  is  not  a  legal 
term,  nor  has  it  any  technical  signification,  but  it  is  compre- 
hensively expressive  of  the  general  nature  of  those  obligations 
of  the  tenant  which  arise  out  of  the  relation  itself,  a  breach 
of  which,  subjects  him  to  a  forfeiture  of  his  rights  under  the 
lease.10  Among  these  obligations  is  the  one  not  to  dispute 
his  landlord's  title,  or,  as  it  is  commonly  stated,  a  tenant  is 
estopped  to  deny  his  landlord's  title.  By  this  is  meant,  that, 
having  received  his  possession  from  his  landlord,  he  will  not, 
so  long  as  he  keeps  and  remains  undisturbed  in  that  posses- 
sion, be  heard  in  court  to  maintain  that  his  landlord  had  no 
legal  possession  to  convey,  and,  that,  therefore,  he  is  under 
no  obligation  to  him  on  account  of  the  possession  which  he 
received.  He  may,  it  is  true,  be  heard  to  maintain  that  the 
landlord's  title  has  failed  since  the  making  of  the  lease,  but 
not,  that  the  possession  which  he  originally  received  under  it 
was  not  a  lawful  one.  The  obligation  of  loyalty  goes  further 
than  this.  The  tenant  is  not  permitted  to  attorn  to  a  stranger, 
— that  is,  he  may  not  acknowledge  a  third  party  as  his  land- 
lord. 

WHEN  THE  TENANT'S  RIGHT  TO  POSSESSION  IS  AS- 
SAILED, HE  IS  BOUND  TO  GIVE  HIS  LANDLORD  DUE  AND 
TIMELY  NOTICE  IN  ORDER  THAT  THE  LANDLORD  MAY 
TAKE  NECESSARY  MEASURES  TO  PROTECT  HIS  RIGHTS. 

The  tenant  may  not  lawfully  surrender  voluntarily  his  pos- 
session to  one  who  claims  by  title  adverse  to  his  landlord. 

The  general  duty  of  loyalty  is  recognized  by  an  eminent 
writer  who  says:  "The  tenant  must  also  regard  the  interest 
of  his  landlord,  with  respect  to  possession,  and  not  only 
maintain  fealty  himself,  but  give  due  notice  of  any  attempt 
to  disposses  him." 

"Taylor  Land.  &  Ten.,  Sec.  180. 


144  LANDLORD   AND   TENANT. 

Nor,  is  the  tenant  allowed  to  buy  up  a  title  adverse  to  his 
landlord's  and  set  this  up  against  his  landlord. 

THE  OBLIGATION  OF  LOYALTY  INVOLVES  ALSO  A  DUTY 
OF  PEOTECTION  OF  THE  PROPERTY  ITSELF. 

He  must  protect  the  landmarks  which  show  the  boundaries 
of  the  property,  and,  while  it  is  said  that  there  is  no  implied 
covenant  on  the  part  of  a  tenant  to  repair,  yet,  some  repairs 
which  are  necessary  to  protect  the  property  from  waste  and 
prevent  its  destruction,  the  tenant  is  bound  to  make,  on  ac- 
count of  the  duty  which  devolves  upon  him  of  protecting  the 
property  wrhich  has  been  entrusted  to  him.  These  obligations 
on  the  part  of  the  tenant  are  conditions,  on  the  fulfillment  of 
which,  rest  his  right  to  the  continued  enjoyment  of  the  prop- 
erty and  for  bieach  of  which  his  lease  may  be  forfeited.  It 
is  thus  seen  that  the  relation  of  landlord  and  tenant  involves 
mutual  duties  of  defense  and  protection  which  are  essential  to 
and  spring  out  of  the  relation,  whether  expressed  in  the  lease 
or  not.  In  this  mutual  duty  of  defense  and  protection  there 
rest  certain  rights  besides  the  right  to  be  absolved  from  the 
obligations  of  the  lease  for  a  breach  of  the  duty.  These  rights 
may  be  stated  broadly  in  this  way: 

IT  IS  A  GENERAL  PRINCIPLE  THAT  WHEN  EITHER 
LANDLORD  OR  TENANT  FAILS  IN  THE  PERFORMANCE  OF  AN 
ACT  WHICH  THESE  DUTIES  REQUIRE,  THE  OTHER  MAY,  FOR 
HIS  OWN  PROTECTION,  PERFORM  THE  ACT  AT  THE  EXPENSE 
OF  THE  ONE  WHO  FAILED  IN  THE  PERFORMANCE  OF  THE 
DUTY. 

For  instance,  if  a  tenant  fails  to  make  repairs  which  it  is 
his  duty  to  make  to  protect  the  premises  against  waste  and 
destruction,  this  confers  upon  the  landlord  an  implied  license 
to  enter  upon  the  tenant's  possession  and  make  the  repairs 
himself.  On  the  other  hand,  if  the  landlord  fails  to  pay  a  mort- 
gage, the  foreclosure  of  which  threatens  the  tenant  with  evic- 


LANDLORD  AND  TENANT.  145 

tion,  the  tenant  may  pay  it  himself  and  hold  back  the  amount 
paid  out  of  his  ren-t.  And,  if  the  landlord  be  himself  a  tenant 
and  fails  to  pay  his  rent,  by  reason  of  which  a  sub-tenant  is 
threatened  with  eviction,  the  sub-tenant  may  pay  his  land- 
lord's rent  and  hold  it  back  out  of  the  amount  due  from  him- 
self. These  rights  which  each  has  to  supplement  the  failure 
of  the  other  for  the  purpose  of  protecting  his  rights  under  the 
contract,  are  in  strict  accordance  with  the  general  principles 
and  analogies  of  the  law.  These  rights  will  be  defined  in  detail 
hereafter,  it  not  being  intended  in  this  opening  discussion  to 
do  more  than  to  point  out  the  great  underlying  principles  on 
which  the  whole  structure  of  the  law  of  landlord  and  tenant 
rests. 

MODERN  TENANCY  AN  EVOLUTION  OF  FEUDAL  TENURES. 

The  aspect  of  the  relation  of  landlord  and  tenant  which 
we  have  had  under  consideration,  as  well  as  some  others  to 
be  noticed  hereafter,  forcibly  suggest  the  feudal  and  military 
tenures  under  which  most  of  the  land  in  England  was  once 
held.  The  lord  of  the  manor  was  the  war  lord,  as  well  as  the 
landlord,  of  the  tenant,  and  the  tenant  had  to  fight  under  his 
banner  when  called  upon.  In  the  absence  of  the  lord,  he  had 
to  defend  his  lord's  title  and  possession,  and,  in  return,  his 
lord  was  bound  to  furnish  him  protection  when  he  was  assailed. 
The  clause  which  is  found  in  most  leases  forbidding  an  assign- 
ment, or  sub-letting  without  the  consent  of  the  landlord,  is  a 
relic  of  feudal  times,  originally  designed  to  prevent  the  in- 
troduction of  persons  unable  or  unwilling  to  follow  the  lord 
to  war.  The  denial  of  the  tenant's  right  to  introduce  to  an- 
other in  his  place  was  matched  by  a  corresponding  inability 
on  the  part  of  the  landlord.  At  the  common  law,  the  landlord 
could  not,  as  he  may  now,  by  transferring  his  interest,  put 
another  landlord  in  his  place  to  whom  the  tenant  should 


146  LANDLORD  AND  TENANT. 

thereafter  be  liable  on  the  covenants  of  his  lease.  The  rela- 
tion of  landlord  and  tenant  was  originally  a  personal  relation, 
the  tenant  or  occupier  of  the  land  acquiring  no  interest  in  the 
land,  and  having  no  stability  of  tenure,  being  liable  to  be  dis- 
possessed at  the  pleasure  of  the  lord. 

It  is  interesting  to  note  that  this  instability  of  tenure  still 
inheres  in  that  occupation  of  land  which  is  granted  to  the 
occupier  of  the  land,  in  order  that  he  may  the  more  conveniently 
render  personal  services  to  the  owner  of  land.  Such  occupants 
are.  not  considered  as  tenants,  and  may  be  summarily  ejected 
at  any  time.  But,  in  the  progress  of  time,  when  war  gave  way 
to  peace  and  swords  were  beaten  into  ploughshares  and  spears 
into  pruning  hooks,  it  was  found  that  land  could  not  be  suc- 
cessfully cultivated,  nor  business  established  and  carried  on, 
except  by  those  who  had  a  stable  tenure  of  their  holdings. 

Agricultural  tenants  took  no  interest  in  enriching  or  re- 
claiming land  which  another  might  cultivate,  and  commercial 
tenants  would  not  make  necessary  improvements  which,  might 
at  any  time  be  confiscated.  The  necessities  of  an  advancing 
civilization  led  to  the  introduction  of  fixed  tenures  and  the 
protection  of  tenants  in  their  rights  to  fixtures. 

The  history  of  the  progressive  development  of  our  law  of 
landlord  and  tenant  is  interwoven  with  and  part  of  the  history 
of  the  progress  of  our  civilization.  This  evolution  is  still  in 
progress,  and  many  changes  and  reforms  may  still  be  con- 
fidently anticipated.  It  would  be  interesting  to  trace  the  steps 
of  this  development,  but  space  in  a  volume  intended  for  the 
use  of  students  and  working  lawyers  forbids.  It  is  important, 
however,  to  note  the  tendency  as  it  may  be  of  assistance  in 
leading  to  a  correct  conclusion  in  cases  where  there  is  an 
apparent  conflict  of  authority,  or  where  the  law  does  not  seem 
to  have  been  finally  settled.  In  such  cases  the  sagacious  judge 


LANDLORD  AND  TENANT.  147 

will  look  forward  and  not  backward.  The  fields  in  which  this 
tendency  to  progress  can  be  most  frequently  observed  are 
those  concerned  with  the  fixity  of  the  tenant's  tenure,  and 
his  ownership  of  and  right  to  remove  fixtures,  and  the  changed 
obligations  growing  out  of  an  accidental  total  or  partial  de- 
struction of  the  leased  premises.  Upon  these  questions,  among 
others,  there  is  a  constant  progress  in  favor  of  the  tenant. 

It  may  be  stated  broadly  that  upon  these  questions  the 
present  state  of  the  law  leaves  much  to  be  desired,  but  the 
tendency  is  constant  toward  a  larger  measure  of  justice  and 
equity. 

POSSESSION,  NOT  OCCUPANCY,  IS  THE  CHABACTEBJSTIC  OF 
TENANCY. 

It  will  not  have  escaped  attention  that  in  defining  the  re- 
lation of  landlord  and  tenant,  the  authors  have  used  the  term 
"possession"  and  "right  to  possession,"  and  not  "occupation" 
or  "right  to  occupation,"  as  the  thing  which  by  the  lease  is 
transferred  from  the  landlord  to  the  tenant.  It  is  important 
to  keep  this  in  mind,  for  there  is  much  permissive  occupancy 
of  land  which  does  not  amount  to  possession,  and  consequently 
does  not  create  the  relation  of  landlord  and  tenant.11 

Such  are  the  cases  before  referred  to.  in  which  the  land  is 
occupied  by  one  for  the  reason  that  he  can  thereby  more  con- 
veniently render  certain  personal  services  to  the  owner  of  the 
land.  Other  cases  of  occupants  who  have  no  possession,  are 
those  who  have  a  mere  license,  and  still  others,  where  the  oc- 
cupiers are  lodgers  or  roomers  or  boarders.  In  none  of  these 
cases  is  there  any  transfer  of  possession,  and  a  tenancy 
does  not  arise,  and,  consequently,  there  is  nothing  out  of  which 
can  spring  those  rights,  duties  and  obligations  which  are  in- 

11  Alpine  Twp.  School  District  vs.  Batsche,  106  Mich.,  330:  29  L.  R. 
A.,  576. 


148  LANDLORD  AND  TENANT. 

herent  in  a  tenancy.12     These  only  spring  from  possession,  a 
term  which  has  a  well  denned  legal  meaning. 

POSSESSION  MEANS  THE  PRESENT  ACTUAL  LEGAL  EN- 
JOYMENT OF  AND  DOMINION  OVER  THE  LAND. 

RIGHT  TO  POSSESSION,  AS  WELL  AS  ACTUAL  POSSES- 
SION, IS  A  SUFFICIENT  BASIS  FOR  TENANCY. 

When  premises  which  are  already  in  the  possession  of  a 
tenant  are  leased  to  another  for  a  term  to  commence  at  a 
future  day,  upon  the  expiration  of  the  existing  tenant's  term, 
it  is  the  right  of  possession  which  will  devolve  upon  the  land- 
lord at  that  time,  which  is  transferred  by  the  lease,  and  this 
right  of  possession  vests  in  the  incoming  tenant  when  that  time 
arrives,  by  virtue  of  his  lease.  Most  leases  are  made  under 
these  conditions.  It  is  said  that  a  tenant's  estate  does  not 
vest  in  him  until  he  actually  enters  into  possession,  and  that, 
up  to  that  time,  he  has  no  estate  in  the  land,  but  only  what  is 
called  an  interesse  termini.  From  this  distinction  flows 
a  variety  of  consequences  as  to  the  actions  and  forms  of  actions 
which  he  is  entitled  to  bring  for  an  injury  to  the  rights  which 
he  acquired  by  his  lease. 

The  chief  distinction  now  between  a  tenant  who  has  only 
an  interesse  termini  and  one  whose  title  has  become 
consummate  by  having  entered  into  possession,  is  that  the 
former  is  not  liable  on  the  obligations  which,  grow  out  of  the 
relation,  but  only  on  the  covenants  of  the  lease.  The  obli- 
gations which  are  inherent  in  the  relation,  rest  only  upon  ten- 
ants who  have  come  into  actual  possession  under  the  lease. 
But  the  lease  confers  upon  the  tenant  a  right  to  possession  and 
makes  him  liable  on  its  covenants. 

"Bowman  vs.  Bradley,  151  Pa.  St.,  351;  17  L.  R.  A.,  213. 


LANDLORD  'AND  TEiNA'NT.  149 

It  is  now  the  prevailing  doctrine  that  the  lease  fully  vests 
in  the  tenant  all  the  possessory  rights  of  the  landlord  from  the 
time  at  which  it  is  limited  to  take  effect,  and  now,  contrary 
to  the  ancient  doctrine,  which,  however,  is  still  maintained  in 
England,  an  action  to  gain  possession  of  the  land  after  the 
term  has  begun  to  run,  must  be  brought  by  the  tenant,  and  not 
by  the  landlord.  When  the  term  begins  to  run,  the  relation 
of  landlord  and  tenant  is  established,  and  the  liability  of  the 
tenant  for  rent  and  on  the  other  covenants  in  his  lease,  is  fixed. 

POSSESSION   OF   LAND.13 

In  legal  contemplation,  he  who  owns  the  ground  owns 
from  the  center  of  the  earth  to  the  sky  and  is  within  their 
limits  entitled  to  exclusive  occupation  and  dominion.  Any 
intrusion  upon  this  exclusive  possession  is  a  legal  injury  and, 
therefore,  a  man  has  a  legal  right  of  action  against  one  who 
erects  a  building  so  that  any  part  of  it  projects  over  his  line;15 
and  he  may  even  maintain  an  action  against  one  who  allows 
his  trees  to  grow  so  that  the  boughs  overhang  his  land.16  This 
possession  and  dominion  is  as  exclusive  below  the  surface  as 
above,  so  that  it  is  as  much  a  trespass  to  cross  a  man's  line 
beneath  the  surface  of  the  earth,  as  in  laying  a  sewer  or  in 
mining  as  it  is  to  dig  in  his  land  on  the  surface.  And  so  it  is 
as  much  a  trespass  to  cut  ice  in  private  waters  as  to  cut  sod 
on  another's  land. 

The  term  "land"  also  includes  houses  and  buildings  and 
other  artificial  structures,  as  well  as  trees,  grass,  crops  and 
other  things  which  grow  upon  the  land.17 

"As  to  what  constitutes  land  see  ante  page  4. 
"Fay  vs.  Prentice,  1  C.  B.,  828. 
"Brook  vs.  Jeimey,  2  Q.  B.,  265. 


150  LA/XDLORiD  AND  TENANT. 

IN  THE  ABSENCE  OF  ANY  EXPRESS  LIMITATION  IN  A 
LEASE,  IT  IS  A  GENERAL  PRINCIPLE  THAT  A  LEASE  TRANS- 
FERS TO  A  TENANT  THE  SAME  EXCLUSIVE  LEGAL  ENJOY- 
MENT OF,  AND  DOMINION  OVER,  THE  LAND  AND  THE 
BUILDINGS  AND  THE  RIGHTS  APPURTENANT  TO  THE  LAND, 
WHICH  THE  LANDLORD  HIMSELF  ENJOYS. 

This  proposition  will  have  been  anticipated  by  the  logical 
reader,  since  it  necessarily  follows  from  the  premises  which 
have  been  already  stated.  The  deduction  is  so  obvious  as  to 
render  it  unnecessary  to  recapitulate  the  process  of  reasoning 
by  which  it  is  reached. 

It  is  a  general  principle  of  the  law,  that  in  every  lease,  or 
conveyance,  whatever  is  appurtenant  or  belongs  to  the  land 
leased  or  conveyed,  goes  with  it.  This  is  true,  whether  the 
lease  is  verbal  or  written,  and  whether  in  the  writing,  appur- 
tenances and  easements  are  mentioned  or  not.  The  practical 
meaning  of  this  rule  can  best  be  illustrated  by  a  statement  of 
cases  which  have  been  decided  in  accordance  with  it.  Thus  it 
has  been  decided  that  a  necessary  (not  merely  convenient)  right 
of  way  passed  with  a  mill;18  so  with  a  house,  pass  fences,  out- 
buildings, trees,  shrubbery,  and  the  right  of  control  to  the 
middle  of  the  street;  with  a  water-mill,  the  right  to  a  sufficient 
head  of  water  in  the  dam  by  which  it  is  fed;  if  the  premises 
are  drained  across  other  land  of  the  landlord,  the  right  to  have 
the  drain  remain;  in  a  tenement  or  apartment  house,  the  right 
to  use  the  front  door  and  the  door-bell,  the  ordinary  place  for 
drying  clothes,  the  water  closets,  etc.;  in  a  business  block,  the 
right  to  a  reasonable  and  customary  use  of  the  hallways  and 
outer  walls  for  signs.  In  such  things,  the  tenant  has,  in  gen- 
eral terms,  a  right  to  the  enjoyment  of  all  that  belongs  to,  or 
goes  with  the  leased  premises.  Where  the  tenant's  possession 

"See  ante  page  4. 
"See  post  easements. 


LANDLORD  AXD  TENANT.  15  j 

is  exclusive,  the  landlord  has  no  more  right  to  remove  or  plant 
a  tree,  to  pull  down  or  alter  buildings  or  fences,  to  put  up  a 
sign,  or  even  to  come  upon  the  land  to  make  repairs,  or  for 
any  other  purpose,  than  a  stranger.  Every  right  that  would 
pass  by  a  deed,  passes  by  a  lease  for  the  term  mentioned  in 
the  lease. 

The  general  principle  being  as  above  announced,  it  re- 
mains only  to  state  its  limitations  and  consequences  to  get  a 
correct  idea  of  this  portion  of  the  law. 

THE  POSSESSION  OF  A  TENANT  IS  AS  EXCLUSIVE  AS  THE 
POSSESSION  OF  AN  OWNER,  AND  EVERY  UNAUTHORIZED 
INTRUSION  UPON  THAT  POSSESSION  IS  A  LEGAL  WRONG 
WHICH  IS  CALLED  A  TRESPASS.19 

The  legal  possession  of  land  must  always  rest  somewhere, 
and  there  can  be  but  one  legal  possession  at  the  same  time. 
There  is  always  someone  who  is  entitled  to  bring  an  action  of, 
trespass  for  an  intrusion  of  land. 

As  it  is  a  maxim  in  the  science  of  physics  that  two  bodies 
eannot  occupy  the  same  space  at  the  sanre  time,  so  it  is  the 
settled  doctrine  of  the  law  that  there  cannot  be  two  legal 
possessions  of  the  same  land  at  the  same  time;  for  the  gist  of 
possession  is  its  exclusive  character.  There  may,  of  course, 
be  a  joint  possession  by  joint  tenants,  or  tenants  in  common, 
but,  in  these  cases,  there  is,  after  all,  but  one  possession  in 
which  the  rights  of  each  joint  party  rest  upon  the  same  basis. 

The  right  of  possession  involves  the  right  or,  it  is  better  to 
say,  is  the  right  to  exclude  all  the  world  from  the  land,  and  this 
right  is  one  which,  unlike  some  other  rights,  the  person  in 

"The  kind  of  trespass  referred  to  in  this  treatise  is  that  which  gives 
rise  to  the  action  "trespass  quare  clausum  fregit,"  the  action  which  lay 
at  the  common  law  for  an  unlawful  intrusion  upon  another's  legal 
possession  of  land. 


152  LANDLORD  AND  TENANT. 

possession  has  a  right  to  enforce  himself,  without  resorting  to 
the  courts,  or  calling  for  the  assistance  of  the  officers  of  the 
law.  This  right  to  use  force  to  protect  a  legal  possession  which 
has  been  peaceably  acquired,  is  of  the  very  gist  of  possession 
and  distinguishes  an  actual  possession  from  an  asserted  right 
of  possession.  For,  since  the  time  of  the  Statute  of  Forcible 
Entry  and  Detainer  (a  subject  treated  in  a  subsequent  portion 
of  this  work),  no  man,  however  clear  and  undoubted  his  right 
to  possession,  has  been  allowed  to  use  force  in  getting  pos- 
session from  one  who  is  already  in  quiet  and  peaceable  pos- 
session, however  wrongfully.  If  the  one  entitled  to  possession 
cannot  secure  it  peaceably,  he  must  resort  to  the  courts.  The 
right  to  maintain  possession,  that  is,  to  exclude  intruders  by 
force,  is  therefore  of  the  very  essence  of  legal  possession.  This 
right  belongs  to  a  tenant  in  possession,  and  he  may  exercise 
it  against  his  landlord,  as  well  as  a.gainst  the  rest  of  the 
'  world.21  A  breach  of  this  right  of  possession,  entitles  the  ten- 
ant to  maintain  an  action  of  trespass,  and  this  action  lies,  in 
a  proper  case,  against  the  landlord  as  well  as  against 
strangers.22 

"The  right  to  use  force  in  maintaining  a  peaceable  possession  is  a 
limited  one.  No  more  force  can  lawfully  be  used  than  is  reasonably 
necessary,  and  homicide  can  never  be  justified  in  repelling  a  mere  tres- 
pass. For  the  precise  limits  of  the  right  to  use  force,  the  reader  should 
consult  works  on  criminal  law  to  which  a  complete  discussion  of  this 
topic  is  more  appropriate. 

"The  right  to  maintain  possession  by  force  here  spoken  of  is,  it 
must  be  understood,  a  right  accorded  by  the  criminal  law,  but  it  is  not 
one  which  is  recognized  by  the  courts  when  disposing  of  civil  contro- 
versies. Thus,  one  who  has  an  actual  possession  may  prosecute  crim- 
inally, as  for  an  assault  or  a  forcible  entry,  one  who  enters  and  at- 
tempts to  remove  him  by  force.  And,  in  such  a  case,  the  court  ad- 
ministering the  criminal  law  will  not  inquire  nor  permit  an  inquiry  into 
where  the  actual  right  of  possession  resides.  But  in  a  civil  action  for 
damages  for  a  trespass  upon  an  existing  possession,  the  question  will 
be  as  to  the  actual  right  of  possession.  In  the  criminal  case,  the  public 
peace  and  the  right  of  the  public  to  tranquility  is  the  paramount  con- 
sideration. In  the  civil  controversy  the  right  of  the  individual  to  which 
he  is  justly  entitled  is  the  subject  of  inquiry.  In  some  cases  the  courts 
have  fallen  into  error- by  not  attending  to  this  distinction. 


LANDLORD  AND  TENANT.  153 

The  general  subject  of  licenses  will  be  hereafter  discussed. 
It  is  only  necessary  at  this  time  to  note  the  application  of  the 
general  principles  to  the  conditions  growing  out  of  the  rela- 
tion of  landlord  and  tenant.23 

OF  THE   LANDLORD'S   LICENSE   TO   ENTER   UPON   THE   TEN- 
ANT'S POSSESSION. 

A  LANDLORD  HAS  AN  IMPLIED  LICENSE  TO  ENTER  UPON 
THE  LAND  FOR  THE  PURPOSE  OF  MAKING  SUCH  REPAIRS 
AS  ARE  NECESSARY  FOR  THE  PRESERVATION  OF  THE  PROP- 
ERTY, OR  TO  SAVE  HIMSELF  FROM  A  LIABILITY  ON  AC- 
COUNT OF  THE  PREMISES  BEING  OUT  OF  REPAIR,  OR  TO  DO 
SUCH  OTHER  ACTS  AS  ARE  NECESSARY  FOR  SELF-PROTEC- 
TION. 

The  landlord  has  also  an  implied  license  to  come  upon  the 
land  for  the  purpose  of  demanding  his  rent,  an  act  which  he 
must,  at  the  common  law,  do  upon  the  land  itself,  in  order  to 
lay  the  foundation  for  a  forfeiture  of  the  lease  for  non-pay- 
ment of  the  rent. 

But,  aside  from  the  license  which  the  law  confers  upon  the 
landlord,  for  the  protection  of  his  rights  and  the  preservation 
of  his  property,  he  has  no  more  right  upon  the  land  during 
the  tenant's  term,  than  a  stranger. 

While  the  authority  is  scanty,  there  is,  however,  enough 
to  sustain  the  principle  that,  the  landlord,  notwithstanding 
the  lease,  retains  such  an  interest  in  and  rights  over  the  prop- 
erty, as  are  necessary  for  his  protection.  Thus,  in  an  action 
of  trespass  against  a  landlord  for  removing  an  obstruction  in 
a  private  way,  then  in  possession  of  a  tenant,  it  was  held  that 
while  a  tenement  is  occupied  by  a  tenant,  the  landlord  has  a 
license  to  use  a  way  appurtenant  to  the  tenement  to  view 

MFor  a  general  discussion  of  subject  of  Licenses  see  post,  page  416. 


154  LANDLORD  AND  TENANT. 

waste,  or  demand  rent,  or  to  remove  an  obstruction.24  And  so 
in  an  action  against  a  landlord  for  an  injury  by  reason  of 
premises  being  out  of  repair  at  the  time  they  were  let,  it  was 
held  that  he  was  liable  because  he  had  a  right  to  enter  upon  the 
tenant's  possession  to  make  repairs  that  must  be  made  in  order 
to  save  him  from,  liability;25  and,  in  that  case,  it  was  said  that 
he  had  also  a  right  to  enter  to  prevent  waste.  And  in  another 
case,  the  court  said  that  a  landlord  has  the  right,  "during  the 
tenancy,  to  enter  and  make  such  permanent  repairs  as  are  es- 
sential to  prevent  waste,  and  indispensable  to  the  due  protec- 
tion and  preservation  of  his  reversionary  interest."21 

ASIDE  FROM  THE  RIGHTS  INVOLVED  IN  THE  RIGHT  OF 
SELF-PROTECTION  AND  THE  RIGHTS  WHICH  ARE  SPE- 
CIALLY RESERVED  IN  THE  LEASE,  THE  LANDLORD  HAS  NO 
GREATER  AUTHORITY  OVER  THE  PREMISES  DURING  THE 
TENANT'S  TERM,  THAN  A  STRANGER. 

Therefore,  a  landlord  has  no  right  to  remove  a  fence  while 
the  tenant  is  in  possession,27  or  to  enter  and  cut  off  a  pump,28 
nor,  wrhere  a  right  to  make  repairs  during  certain  months  is 
reserved,  to  make  them  at  any  other  time,29  nor  to  make  any 
alterations,30  nor  to  make  repairs  at  all  when  unnecessary  to 
prevent  waste,31  nor  to  license  the  construction  of  a  road,32 
or  a  railroad  across  the  premises. 

"Examine  on  this  subject,  before  proceeding, 

1  Taylor,  Sec.  174. 

12  Encyc.,  682,  etc.     • 

1  Pound  vs.  Hollis,  1  B.  &  C.,  9. 
"Anderson  vs.   Dickie,   26  How.   Pr.   (X.   Y.),   105. 
"Sulzbacher  vs.  Dickie,  51  How.  Pv.   (N.  Y.),  500. 
"Abrams  vs.  Watson,  59  Ala.,  524. 
"Dickinson  vs.  Goodspeed,  8  Gush.,  119. 
"Goebel  vs.  Hough,  26  Minn.,  252. 
'"Kaiser  vs.  New  Orleans,  17  La.  Ann.,  178. 
"Barker  vs.  Barker,  3  G.  &  P.,  557. 

**Brown  vs.  Powell,  25  Pa.  St.,  229;  Crowell  vs.  R.  R.  Co.,  61  Miss., 
631. 


LANDLORD  AND  TENANT.  155 

WHERE  ONE  OCCUPIES  THE  LAND  OF  ANOTHER  UNDER 
A  CONTRACT,  THE  PURPOSE  OF  WHICH  IS  TO  FORWARD  THE 
BUSINESS  OF  THE  LAND  OWNER,  HE  WILL  USUALLY  BE  RE- 
GARDED AS  A  LICENSEE,  AND  NOT  AS  A  TENANT. 

A  great  number  of  decisions  have  turned  upon  the  ques- 
tion whether  an  occupant  of  land  was  a-  licensee  or  a  tenant. 
The  importance  of  the  distinction  is  great.  A  tenant  has  legal 
possession;  a  licensee  has  a  mere  personal  contract,  while  the 
legal  possession  remains  with  the  land  owner.  A  tenant  is 
subject  to  the  implied  obligations  which  inhere  in  a  tenancy; 
a  licensee  is  not  subject  to  them,  for  the  reason  that  he 
has  no  legal  dominion  or  control  over  the  land.  The  tenant  is 
not  subject  to  be  ejected  without  due  process  of  law,  while  a 
licensee  may  be  excluded  at  any  time  without  notice  and  with- 
out process.  His  occupation  is,  as  it  were,  that  of  a  servant, 
and  not  that  of  an  independent  proprietor.33 

The  following  cases  illustrate  the  principle:  A  miner  in 
the  employ  of  a  mining  company  occupying  a  cottage  which 
is  owned  by  the  company;  an  agricultural  laborer  occupying 
a  house  on  a  farm  on  which  he  is  employed,  and  having  the 
house  so  that  he  can  more  efficiently  do  his  work  on  the  farm; 
an  employed  manager  who  has  rooms  in  a  hotel  in  which  he 
is  employed;  the  keeper  of  a  stall  in  a  public  market  owned  by 
a  municipal  corporation,  are  simply  licensees. 

LEASES. 

Various  definitions  of  the  lease  contract  are  given  by  the 
text  writers,  but  none  has  been  found  which  is  entirely  sat- 
isfactory. Blackstone's  definition  is  as  follows:  "A  lease  is 
properly  a  conveyance  of  any  lands  or  tenements  (usually  in 
consideration  of  rent  or  other  annual  recompense),  made  for 

33Hodgkins  vs.  Farrington,  150  Mass.,  19;  5  L.  R.  A.,  209. 
See  Pierce  vs.  Qleland,  131  Pa.  St.,  189. 


156  LANDLORD  AND  TENANT. 

life,  for  years,  or  at  will,  but  always  for  a  less  time  than  the 
lessor  hath  in  the  premises;  for,  if  it  be  for  the  whole  interest, 
it  is  more  properly  an  assignment  than  a  lease."34  This  state- 
ment is  inaccurate  in  several  particulars.  A  lease  may  be 
perpetual,  or  for  the  whole  term  of  the  lessor.  It  is  true  that 
there  must  be  a  reversionary  interest  in  the  lessor,  or  he  is  not 
a  landlord.  But  this  need  not  be  a  vested  reversion.  It  may  be 
a  contingent  reversion,  which  will  only  vest  upon  the  defeas- 
ance of  the  tenant's  estate  by  a  breach  of  the  conditions  under 
which  he  holds.  There  is  also  a  lack  of  precision  in  designating 
a  lease  as  a  conveyance  of  lands  for  a  certain  time,  since  it  is 
only  the  possession  and  profits  of  the  land  which  are  conveyed. 
But  the  most  striking  defect  in  this  definition  is  that  it  fails 
to  express  the  thought  that  a  lessee  always  holds  upon  certain 
continuing  conditions  for  a  breach  of  which  his  estate  is  sub- 
ject to  be  defeated  at  any  time.  Kent  says,  "a  lease  for  years 
is  a  contract  for  the  possession  and  profits  of  land  for  a  de- 
termined period,  with  the  recompense  of  rent."35  This  defini- 
tion is  insufficient,  because  it  does  not  suggest  the  idea  of  the 
landlord's  reversionary  interest,  and  also  because  it  makes  the 
payment  of  rent  a  necessary  part  of  the  contract;  for,  while, 
as  Blackstone  says,  it  is  usual,  it  is  not  a  necessary  part  of  the 
contract.  Other  definitions  which  might  be  quoted  would  be 
found  equally  imperfect.  None  of  these  definitions  draws  at- 
tention to  that  feature  of  the  lease  contract  whichc  distin- 
guishes it  from  other  contracts  relating  to  land. 

The  lease  contract  is  a  contract  which,  when  consummate, 
establishes  a  relation  between  the  parties  to  it.  Other  familiar 
examples  of  contracts  which  establish  relations  are,  the  con- 

"Blackstone  Com.,  317. 
"4  Kent.  Com.,  S5. 


LANDLORD  AND  TENANT.  157 

tract  of  hiring  which  gives  rise  to  the  relation  of  master  and 
servant;  the  contract  of  agency  which  gives  rise  to  the  rela- 
tion of  principal  and  agent;  the  contract  of  partnership;  the 
contract  of  marriage,  which  gives  rise  to  the  relation  of  hus- 
band and  wife. 

The  distinguishing  characteristic  of  this  class  of  contracts 
is,  that  they  give  rise  to  a  relation;  that  to  these  relations  the 
law  attaches  certain  obligations,  outside  of  the  particular 
terms  of  the  contracts  creating  the  relationship;  that  these 
obligations,  whether  called  duties  or  implied  covenants,  are 
obligations  of  fidelity  and  mutual  protection,  and  finally,  that 
these  obligations  which  the  law  attaches  to  these  relations, 
are  conditions  upon  the  fulfillment  'of  which  the  right  to  the 
continuance  of  the  relation  and  of  the  contract  out  of  which 
it  grows,  depends. 

A  LEASE  IS  A  CONTRACT  TRANSFERRING  THE  RIGHT  TO 
THE  POSSESSION  AND  ENJOYMENT  OF  LAND  UPON  CON- 
DITION THAT,  WHILE  HOLDING  THIS  POSSESSION,  THE 
PARTY  TO  WHOM  POSSESSION  IS  TRANSFERRED  SHALL  CON- 
TINUE TO  FULFILL  CERTAIN  OBLIGATIONS  IMPOSED  BY 
THE  CONTRACT,  AND  ALSO  OF  LOYALTY  TO  THE  REVER- 
SIONARY INTERESTS  OF  THE  PARTY  WHO  IS  ENTITLED  TO 
POSSESSION  UPON  THE  DETERMINATION  OF  THE  LEASE- 
HOLD STATE,  IMPOSED  BY  THE  LAW. 

This  definition  includes  all  that  is  essential  to  a  lease. 
Every  contract  which  answers  to  its  terms  is  a  lease,  and,  on 
the  other  hand,  no  contract  which  is  not  included  within  these 
terms  can  be  classed  as  a  lease.  The  proper  technical  legal 
term  for  "lease"  is  "demise."  This  word  of  its  own  force  al- 
ways imports  a  lease  with  all  of  its  implied  covenants.  So- 
also  does  the  word  "lease."  But  there  is  no  particular  word 
or  phrase  which  must  be  used  in  making  the  lease  contract. 
A  lease  is  like  any  other  contract.  It  is  formed  by  the  agree- 
ment of  the  parties,  and  this  agreement  may  be  expressed  by 


158  LANDLORD  (AND  TENANT. 

any  language  which  makes  the  intention  of  the  parties  clear. 
And  it  is  not  even  necessary  that  the  contract  should  be  ex- 
pressed in  words.  It  may  be  implied  from  the  situation  of  the 
parties  and  their  conduct  towards  each  other  with  regard  to 
the  subject  matter  of  the  lease. 

We  shall  proceed  first  with  the  discussion  of  the  subject  of 
express  leases,  after  which  the  subject  of  implied  leases  will 
be  considered. 

EXPRESS  LEASES. 

Express  leases  are  of  three  kinds — leases  in  writing  under 
seal,  leases  in  writing  not  under  seal,  and  unwrritten  or  verbal 
leases. 

LEASES  IN  WRITING  UNDER  SEAL. 

Those  of  the  first  class,  like  all  writings  under  seal,  are 
called  deeds  or  specialties. 

A  sealed  instrument  is  regarded  by  the  English  common 
law  as  having  a  specially  solemn  and  authentic  character  and, 
although  much  of  the  peculiar  importance  and  solemnity  form- 
erly ascribed  to  sealed  instruments  is  no  longer  attached  to 
them,  enough  still  remains  to  make  the  distinction  between 
sealed  and  unsealed  instruments  important.  Says  Chancellor 
Kent:  "The  common  law  intended  by  a  seal,  an  impression 
upon  wax  or  wafer,  or  some  other  tenacious  substance  capable 
of  being  impressed."  According  to  Lord  Coke,  a  seal  is  wax, 
with  an  impression;  sigillum  est  cera  impressa,  quia  cera  sine 
impressione  non  est  sigillum.  The  common  law  definition  of 
a  seal  and  the  use  of  rings  and  signets  for  that  purpose  and  by 
way  of  signature  and  authenticity,  is  corroborated  by  the  usages 
and  records  of  all  antiquity,  sacred  and  profane.  In  the  eastern 
States,  sealing,  in  the  common  law  sense,  is  requisite;  but,  in 
the  southern  and  western  States,  from  New  Jersey  inclusive, 
the  impression  on  wax  has  been  disused  to  such  an  extent  as  to 


LANDLORD  (AND  TENANT.  159 

induce  the  courts  to  allow  (but  with  certain  qualifications  in 
some  of  the  states)  a  flourish  with  the  pen,  at  the  end  of  the 
name,  or  a  circle  of  ink,  or  scroll,  to  be  a  valid  substitute  for 
a  seal."36 

As  the  law  as  to  when  a  seal  is  required  and  what  is  a 
sufficient  sealing  is  different  in  the  different  States,  it  will  be 
necessary  to  state  the  law  on  this  subject  particularly,  for  each 
State.  And  this  seems  to  be  an  appropriate  place  to  call  the 
attention  of  the  reader  to  a  general  principle,  with  regard  to 
leases,  which  seems  to  have  escaped  the  observation  of  some 
of  the  text  writers.  Contracts  are  often  made  in  one  State  or 
country  to  be  performed  in  another,  and  a  remedy  for  this 
breach  may  be  sought  in  the  courts  of  a  third.  In  such  cases, 
the  inquiry  often  arises  by  which  law  the  questions  involved 
are  to  be  determined.  The  rule  is  simple  and  may  be  stated 
as  follows: 

THE  VALIDITY  AND  CONSTRUCTION  OF  LEASES,  AS  OF 
ALL  CONTRACTS  RELATING  TO  LAND,  MUST  BE  DETER- 
MINED BY  THE  LAW  OF  THE  PLACE  WHERE  THE  LAND  IS 
SITUATED." 

This  principle  is  applied  to  leases  in  its  fullest  extent.  The 
validity  -of  a  lease  is  tested  by  its  conformity  to  the  law  of  the 
place  where  the  land  is  situated,  known  as  the  lex  loci  rei  sitae, 
and  its  construction  is  governed  by  the  same  law.38 

But  it  is  pointed  out  by  Kent  that  this  doctrine  may  be 
subject  to  some  qualification.  He  says,  "not  only  real  but 
mixed  actions,  such  as  trespasses  upon  real  property,  are 
properly  referable  to  the  forum  rei  sitae.  But  the  Court  of 
Chancery  having  authority  to  act  in  personam,  will  act  indi- 
rectly, and  under  qualifications,  upon  real  estate  situated  in 

"4  Kent  Com.,  452. 

"Story  Confl.  of  Laws,  364  et  seq. 

M12  Am.   &  Eng.   Encycl.   of  Law,  563  et  seq. 


160  LANDLORD  AND  TENANT. 

a  foreign  country  by  reason  of  this  authority  over  the  person, 
and  it  will  compel  him  to  give  effect  to  its  decrees,  by  a  con- 
veyance, release  or  otherwise,  respecting  such  property."39  In 
this  connection,  it  is  proper  to  note  that  the  law  of  landlord 
and  tenant  being  of  an  essentially  local  character,  the  courts 
of  the  United  States  in  cases  involving  such  law,  are  governed 
by  the  statutes  and  decisions  of  the  state  courts  of  the  State 
in  which  the  property  is  situated. 

WHEN  A  SEAL  IS  ESSENTIAL  TO  THE  VALIDITY  OF  A  LEASE. 

At  the  common  law,  no  freehold  estate  could  be  created 
except  by  livery  of  seisin  or  by  deed, — that  is,  as  has  been  ex- 
plained, an  instrument  under  seal.  The  statute  of  frauds  abol- 
ished the  former  method.  Since  the  enactment  of  the  statute 
of  frauds,  freehold  estates  could  only  be  created  in  England 
by  deed,  and  it  has  been  held  that  this  rule  still  prevails  in  this 
country,  except  where  it  has  been  abolished  by  statute.40 

A  freehold  is  an  estate  for  life  or  of  inheritance.  Any 
estate  less  than  an  estate  for  life  is  not  a  freehold.  And  by 
the  common  law  any  estate  for  years,  though  it  be  for  nine 
hundred  and  ninety-nine  years,  is  less  in  dignity  than  an 
estate  for  life,  and  does  not  amount  to  a  freehold.  Therefore, 
under  this  rule,  a  lease  for  life  or  a  perpetual  lease,  must  al- 
ways be  sealed,  except  in  those  States  whose  statutes  expressly 
dispense  with  the  necessity  of  a  seal.41 

»2  Kent  Com.,  463. 

"Dew  vs.  'Johnson,   3   Green    (N.   J.),  116;    Allen  vs.  Jaquish,  21 
Wend.,  628. 

"In  Alabama,  Arizona,  Arkansas,  California,  Colorado,  Indiana, 
Kentucky,  Louisiana,  Mississippi,  Nebraska,  North  Dakota,  Ohio,  South 
Dakota,  Texas,  Utah  and  Washington  seals  are  unnecessary.  In  Dela- 
ware it  is  enacted  that  "No  demise,  except  it  be  by  deed,  shall  be  effec- 
tual for  a  longer  term  than  one  year."  In  Florida,  "no  estate  *  *  * 
for  a  term  of  years  of  more  than  two  years  *  *  *  shall  be  created, 
made,  granted,  conveyed,  transferred  or  released  in  any  other  manner 
than  by  deed  in  writing,  sealed  and  delivered  in  the  presence  of  at  least 
two  witnesses."  In  Rhode  Island,  "no  estate  *  *  *  for  a  term  ex- 


LANDLORD   AND   TENANT.  161 

IF  A  LEASE  WHICH  THE  LAW  REQUIRES  TO  BE  UNDER 
SEAL,  IS  SEALED  IN  THE  MANNER  REQUIRED  BY  THE  COM- 
MON LAW,  IT  IS  NOT  NECESSARY  THAT  IT  SHOULD  ALSO  BE 
SIGNED. 

The  question  has  been  discussed  whether,  when  by  law  a 
lease  under  seal  is  required,  a  lease  which  is  sealed  in  the 

ceeding  one  year,  in  lands  or  tenements,  shall  be  conveyed  from  one  to 
another  by  deed  unless  the  same  be  in  writing,  signed,  sealed  and  de- 
livered by  the  party  making  the  same  and  acknowledged." 

WHAT  IS  A  SUFFICIENT  SEAL. 

In  Alabama,  no  seal  is  required;  in  Arizona  no  seal  is  required  to 
be  used  except  by  corporations;  in  Arkansas,  private  seals  are  abol- 
ished; in  California,  a  seal  is  unnecessary;  in  Colorado,  no  seal  is  re- 
quired; in  Connecticut,  the  word  (seal)  or  the  letters  (L.  S.)  are  equiva- 
lent to  a  seal;  in  Delaware,  a  scroll  answers  for  a  seal;  in  the  District 
of  Columbia,  a  scroll  is  a  sufficient  seal;  in  Florida,  a  scroll  seal  with 
the  word  "seal"  written  in  (seal)  is  sufficient;  in  Georgia,  a  scroll  seal  is 
sufficient;  in  Idaho,  a  scroll  is  sufficient;  in  Illinois,  a  scroll  is  sufficient; 
in  Indiana,  no  seal  is  necessary;  in  Iowa,  no  seal  is  necessary;  in  Kan- 
sas, seals  are  unnecessary;  in  Kentucky,  it  would  appear  that  common 
law  seals  are  necessary,  and  so  in  Louisiana;  in  Maine,  the  common 
law  seal  is  required;  in  Maryland,  a  scroll  seal  is  sufficient;  in  Massa- 
chusetts, a  wafer  or  wax  seal  is  required;  in  Michigan,  any  scroll  or 
device  used  as  a  seal  is  sufficient;  in  Minnesota,  scroll  seals  are  used; 
in  Mississippi,  no  seal  is  needed  to  the  name  of  the  party;  in  Missouri,  a 
scroll  is  sufficient;  in  Montana,  a  scroll  seal  is  sufficient;  in  Nebraska, 
a  scroll  seal  is  customary,  but  is  not  required;  in  Nevada,  a  scroll  seal  is 
sufficient;  in  New  Hampshire,  a  wafer  or  wax  seal  is  required;  in  New 
Jersey,  a  wafer  is  generally  used,  but  a  scroll  seal  is  sufficient;  in  New 
Mexico,  a  scroll  seal  is  usual;  in  New  York,  a  wafer  or  wax  seal  is 
necessary;  in  North  Carolina,  a  scroll  seal  is  sufficient;  in  North  Dakota, 
seals  are  unnecessary;  in  Ohio,  private  seals  are  abolished;  in  Oregon,  a 
scroll  seal  is  sufficient;  in  Pennsylvania,  a  scroll  seal  is  sufficient;  in 
Rhode  Island,  a  seal  is  necessary  and  must  be  impressed  upon  the 
paper,  with  or  without  wafer  or  wax;  in  South  Carolina,  a  scroll  seal 
is  sufficient;  in  South  Dakota,  seals  are  unnecessary;  in  Tennessee,  a 
scroll  seal  is  sufficient;  in  Texas,  no  seal  is  necessary;  in  Utah,  no  seal 
is  required;  in  Vermont,  a  scroll  seal  will  not  suffice — a  paper  or  wafer 
seal  is  usual;  in  Virginia  and  West  Virginia,  a  scroll  is  sufficient;  in 
Washington,  a  seal  is  unnecessary;  in  Wisconsin,  (seal)  or  (L.  S.)  is 
sufficient;  in  Wyoming,  a  scroll  seal  is  sufficient. 

The  reader  will  bear  in  mind  that  the  foregoing  does  not  apply  to' 
official  nor  to  corporate  seals,  but  only  to  what  are  strictly  called  pri- 
vate seals.  The  deeds  of  corporations  must  almost,  if  not  quite,  uni- 
versally be  authenticated  by  corporate  seals1,  and  official  seals  must 
have  a  distinct  and  individual  character. 

'But  courts  will,  when  possible,  presume  that  a  seal  attached  to  a 
corporate  deed  is  the  seal  of  the  corporation. 

Coal  Co.  vs.  Peers,  37  N.  E.  Rep.  (111.),  937,  and  cases  there  re- 
ferred to. 


162  LANDLORD   AND   TENANT. 

manner  required  by  the  common  law  need  also  be  signed.  And 
it  seems  to  be  settled  that  under  the  English  Statute  of  Frauds 
and  under  those  American  Statutes  which  use  substantially 
the  same  language  sealing  is  sufficient,  and  a  signature  is  un- 
necessary.42 And  where  the  seal  is  affixed  by  a  third  party  in 
the  presence  and  at  the  request  of  the  party  this  is  an  execu- 
tion by  the  party  in  person  and  not  by  an  agent.43 

ATTTHOBITY  TO  AN  AGENT  TO  EXECUTE  A  DEED  CAN 
ONLY  BE  CONFERBED  BY  A  DEED,  THAT  IS,  AS  HAS  BEEN 
EXPLAINED,  BY  A  SEALED  INSTBUMENT." 

Where  a  lease  under  seal  is  to  be  executed  by  an  agent,  it 
is  unusual  and  unnecessary  to  make  any  allusion  to  this  in 
the  body  of  the  lease.  The  lease  should  be  drawn  in  all  re- 
spects as  though  it  were  to  be  executed  by  the  principal  in 
person.  The  agent's  authority  to  execute  the  lease,  or  a  veri- 
fied copy  should  be  attached  to  the  lease,  in  which  case,  it  is 
proper  and  usual  that  the  attestation  clause  should  read  as  fol- 
lows, "in  witness  whereof  the  said  A.  B.  (principal)  hath  here- 
unto set  his  hand  (and  seal)  by  C.  D.,  his  agent,  thereunto  law- 
fully authorized  by  the  writing  (or,  a  copy  of  which),  which  is 
hereunto  attached,  A.  B.  (principal)  (seal) ;  by  C.  D.  (agent)." 

If  the  lease  is  one  which  must  be  acknowledged,  the  ac- 
knowledgment is  in  the  following  form:  On  this day 

of ,  A.  D.  189. .,  before  me. ,  personally  appeared 

C.  D.,  agent  of  A.  B.,  and  acknowledged  the  foregoing  instru- 
ment to  be  the  free  act  and  deed  of  A.  B.  (principal),  and  that 

^Browne  on  Frauds,  Sec.  9  et  seq. 

Parks  vs.  Hazelrigg,  7  Blackf.  (Ind.),  536;  1  Pars,  on  Contr.,  96  note. 
**Gardner  vs.  Gardner,  5  Cush.,  483. 
"Blood  vs.  Goodrich,  y  Wend.,  6S. 

Cooper  vs.  Rankin,  5  Binnay,  613. 

Plummer  vs.  Russell,  2  Bibb.,  174. 

Banorgee  vs.  Hovey,  5  Mass.,  40. 

Hanford  vs.  McMaio,  9  Weud.,  54. 

Riedler  vs.  Fish,  14  111.  App.,  2j>. 


LANDLORD   AND   TENANT.  163 

he,  C.  D.  (agent),  had  thereunto  set  the  hand  (and  seal)  of  said 
A.  B.  (principal)  for  the  uses  and  purposes  therein  mentioned. 

A  lease  should  be  executed  in  this  way  because,  if  purport- 
ing to  be  executed  by  C.  D.,  agent  for  A.  B.,  a  court  may  con- 
strue it  to  be  the  personal  lease  of  C.  D.,  holding  the  words 
agent  for  A.  B.  to  be  words  of  description  merely.  This  has 
actually  occurred  in  a  number  of  cases,  and  appears  to  be  still 
the  settled  law. 

The  principle  is  that  where  the  law  requires  a  lease  to  be 
sealed  the  body  of  the  lease  must  show  that  it  is  the  act  of  the 
principal,  and  his  seal  must  be  attached  to  it,  and  this  means 
his  seal  as  his  seal,  and  not  as  a  mere  addition  to  the  name  of 
the  party  for  whom  the  agent  claims  to  act.  An  agent  may  be 
authorized  to  attach  the  seal  and  signature  of  his  principal, 
but  he  cannot  substitute  his  own  seal  or  signature  for  the  seal 
or  signature  of  his  principal,  although  in  doing  so  he  says  he 
does  it  for  his  principal.45  In  an  ancient  and  leading  case  the 
doctrine  is  stated  in  this  way :  "When  anyone  has  authority  as 
attorney  to  do  any  act,  he  ought  to  do  it  in  his  name  who 
gives  the  authority;  for  he  appoints  the  attorney  to  be  in  his 
place,  and  to  represent  his  person;  and  therefore  the  attorney 
cannot  do  it  in  his  own  name,  nor  as  his  proper  act,  but  in  the 
name  and  as  the  act  of  him  who  gave  the  authority."  A  strik- 
ing illustration  of  the  rule  is  afforded  by  the  case  of  Elwell  vs. 
Shaw,  16  Mass.,  42. 

In  that  case  it  appeared  that  Jonathan  Elwell  had  executed 
to  Joshua  Elwell  a  power  of  attorney  in  the  following  terms: 
''Know  all  men  by  these  presents,  that  I,  Jonathan  Elwell,  of 
etc.,  do  make,  ordain,  constitute  and  appoint  Joshua  Elwell,  of 

"The  strictness  of  the  ancient  rules  has  been  much  relaxed  in  some 
courts,  and  a  lease  by  a  corporation,  which  was  signed  by  E.  J.  Crandall 
(seal),  President,  was  held  to  be  the  deed  of  the  corporation. 

Coal  Co.  vs.  Peers,  37  N.  E.  Rep.  (111.),  937. 


164  LANDLORD   AND   TENANT. 

etc.,  my  true  and  lawful  attorney,  for  me  and  in  my  name,  to 
sell  any  real  estate,  which  I  am  now,  or  may  be  seised  or  pos- 
sessed of,  to  such  person  or  persons  and  for  such  sum  or  sums 
as  he  may  think  proper;  and  in  my  name  to  make,  execute  and 
deliver  such  deeds  and  instruments,"  etc.  Joshua,  under  this 
power  of  attorney,  executed  a  deed  of  the  premises  in  dispute. 
The  deed,  after  reciting  the  power  of  attorney,  proceeded  as  fol- 
lows: "Xow,  know  ye,  that  I,  the  said  Joshua,  by  virtue  of 
the  power  aforesaid,  in  consideration,  etc.,  do  hereby  bargain, 
grant,  sell  and  convey  to  J.  S.  and  T.  P.  S.  a  certain  tract  of 
land"  (describing  the  premises  in  dispute).  The  testimonium 
clause  was  as  follows:  "In  testimony  whereof  I  have  here- 
unto set  the  name  and  seal  of  the  said  Jonathan,  this,"  etc. 
Signed,  Joshua  Elwell,  and  a  seal.  It  was  held  that  this  instru- 
ment did  not  convey  Jonathan  Elwell's  title. 

Other  cases  illustrating  the  rule  are  cited  in  the  note.46 
Where  a  sealed  instrument  is  executed  by  an  agent,  it  is  unnec- 
essary that  the  agent's  seal  should  be  attached  to  his  signa- 
ture. 

LEASES  IN  WRITING  NOT  UNDER  SEAL. 

The  statutes  of  the  various  states  modeled  upon  the  English 
Statute  of  Frauds  require  certain  leases  to  be  in  writing  and 

"Townsend  vs.  Hubbard,  4  Hill,  351;  Stinfield  vs.  Little,  1  Green 
(Me.),  231;  Brinley  vs.  Mann,  2  Cush.,  337;  McClure  vs.  Herring,  70  Mo., 
18;  Mechem  on  Agency,  Book  3,  Chap.  2;  Fowler  vs.  Shearer,  7  Mass., 
14;  Tippets  vs.  Walker,  4  Mass.,  595;  Tucker  vs.  Bass,  5  Mass.,  164; 
Taft  vs.  Brewster,  9  Johns  (N.  Y.),  334;  Lutz  vs.  Sinthicum,  8  Pet.  (U. 
S.),  165;  Fullam  vs.  West  Brookfield,  9  Allen  (Mass.),  1;  Duval  vs.  Craig, 
2  Wheat.  (U.  S.),  45;  Deming  vs.  Bullitt,  1  Blackf.  (Ind.),  241;  White  vs. 
Skinner,  13  Johns  (N.  Y.),  307;  Quigley  vs.  DeHaas,  82  Penn.  St.,  267; 
Briggs  vs.  Partridge,  64  N.  Y.,  357;  Kiersted  vs.  Orange,  etc.,  R.  R.  Co., 
69  N.  Y..  343;  Sargent  vs.  Webster.  13  Mete.  (Mass.),  497;  Endsley  vs. 
Strock,  50  Mo.,  508;  Jones  vs.  Morris,  61  Ala.,  518;  Banks  vs.  Sharp. 
6  J.  J.  Marsh  (Ky.),  180;  Locke  vs.  Alexander,  2  Hawk.  (N.  C.),  155; 
Scott  vs.  McAlpin,  N.  C.  Term  Rep.,  155;  Bellas  vs.  Hays,  5  Serg.  &  R. 
(Penn.),  427;  Fisher  vs.  Salmon.  1  Cal.,  413;  Walsh  vs.  Usher,  2  Hill 
Ch.  (S.  C.),  167;  Buffalo  Catholic  Institute  vs.  Bitter,  87  N.  Y.,  250; 
Willis  vs.  Bellamy,  52  N.  Y.,  Super  Ct.,  373. 


LANDLORD   AND  TENANT.  165 

signed  by  the  parties  to  the  lease  or  by  their  agents  authorized 
in  writing.  As  the  law  varies  in  the  different  states,  it  will 
be  necessary  to  state  the  law  on  this  subject  separately  for 
each  state.47 

47In  Alabama,  all  leases  "except  leases  for  a  term  not  longer  than 
one  year"  are  void  unless  the  "agreement  or  some  note  or  memorandum 
thereof  expressing  the  consideration  is  in  writing  and  subscribed  by  the 
party  to  be  charged  therewith,  or  some  person  by  him  lawfully  there- 
unto authorized  in  writing."  In  Arkansas  all  leases  "not  put  in  writing 
and  signed  by  the  parties  so  making  or  creating  the  same,  or  their 
agents  lawfully  authorized  by  writing,  shall  have  the  force  and  effect 
of  leases  or  estates  at  will  only,  and  shall  not,  either  in  law  or  equity, 
be  deemed  or  taken  to  have  any  greater  effect  or  force  than  as  leases 
not  exceeding  the  term  of  one  year."  In  California  "every  contract  for 
the  leasing  for  a  longer  period  than  one  year  *  *  *  of  any  lands 
shall  be  void,  unless  the  contract  or  some  note  or  memorandum  thereof 
expressing  the  consideration  be  in  writing  and  be  subscribed  Jby  the 
party  by  whom  the  lease  *  *  *  is  to  be  made."  In  Connecticut  no 
lease  of  any  houses  or  lands  *  *  *  for  any  term  of  years  exceeding 
one  year  shall  be  counted  good  and  effectual  in  law,  to  hold  such  houses 
and  lands  against  any  other  person  or  persons  whatsoever  but  the 
lessor  or  lessors  and  their  heirs,  unless  such  lease  shall  be  in  writing, 
subscribed  by  the  lessor,  attested  by  two  subscribing  witnesses,  ac- 
knowledged before  some  authority  empowered  to  take  the  acknowledg- 
ment of  deeds  of  land,  and  recorded  at  length  in  the  records  of  the 
town  where  such  estate  lies."  In  Delaware  "no  demise,  except  it  be 
by  deed,  shall  be  effectual  for  a  longer  term  than  one  year." 

In  Florida  "no  estate  *  *  *  for  a  term  of  years  of  more  than 
two  years  shall  be  created  *  *  *  transferred  *  *  *  or  released 
in  any  other  manner  than  by  deed  in  writing,  sealed  and  delivered  in 
the  presence  of  at  least  two  Avitnesses  by  the  party  or  parties  creating, 
*  *  *  transferring  *  *  *  or  releasing  such  *  *  *  term  of 
years  or  by  his,  her  or  their  agent  thereunto  lawfully  authorized." 

In  Georgia  the  English  Statute  of  Frauds  is  held  to  be  in  force.  Its 
provisions  with  regard  to  leases  are  as  follows:  "All  leases  * .  *  * 
not  put  in  writing  and  signed  by  the  parties  so  making  and  creating 
the  same,  or  their  agents  thereunto  lawfully  authorized  by  writing, 
shall  have  the  force  and  effect  of  leases  or  estates  at  will  only,  and 
shall  not,  either  in  law  or  equity,  be  deemed  or  taken  to  have  any  other 
greater  force  or  effect;  *  *  *  except,  nevertheless,  all  leases  not 
exceeding  the  term  of  three  years  from  the  making  thereof,  whereupon 
the  rent  reserved  to  the  landlord,  during  such  term,  shall  amount  to  two 
thirds  part  at  the  least  of  the  full  improved  value  of  the  thing  de- 
mised." 

In  Illinois  "no  action  shall  be  brought  *  *  *  to  charge  any  per- 
son *  *  *  upon  any  contract  for  the  sale  of  lands,  tenements  or 
hereditaments,  or  any  interest  in  or  concerning  them,  for  a  longer  term 
than  one  year,  *  *  *  unless  the  promise  or  agreement  upon  which 
such  action  shall  be  brought,  or  some  note  or  memorandum  thereof, 
shall  be  in  writing  and  signed  by  the  party  to  be  charged  therewith,  or 
some  other  person  thereunto  by  him  lawfully  authorized."  In  Indiana 


166  LANDLORD   AND   TENANT. 

OF  THE  SIGNING  OF  WRITTEN  LEASES  BY  THE  PARTIES. 

Various  questions  have  arisen  about  the  signing  of  written 
leases.    Among  others  it  has  been  suggested  by  a  writer  on 

"no  action  shall  be  brought    *     *     *    upon  any  agreement  that  is  not 
to  be  performed  within  one  year  from  the  making  thereof,  unless  the 
promise,  contract,  or  agreement  upon  which  such  action  shall  be  brought 
or  some  memorandum  or  note  thereof,  shall  be  in  writing  and  signed  by 
the  party  to  be  charged  therewith,  or  by  some  person  thereunto  by  him 
lawfully  authorized;  excepting,  however,  leases  not  exceeding  the  term 
of  three  years."    In  Iowa  "no  evidence  of  contracts    *     *     *    for  the 
creation  or  transfer  of  any  interest  in  lands,  except  leases  for  a  term  not 
exceeding  one  year    *     *    *    is  competent,  unless  it  be  in  writing  and 
signed  by  the  party  to  be  charged  or  by  his  lawfully  authorized  agent." 
In  Kentucky  "no  action  shall  be  brought  to  charge  any  person     *     *     * 
upon  any  contract  for  the  sale  of  real  estate,  or  any  lease  thereof  for  a 
longer  term  than  one  year,     *     *     *    unless  the  contract    *    *    *    or 
some  memorandum  or  note  thereof  be  in  writing  and  signed  at  the  close 
thereof  by  the  party  to  be  charged  therewith,  or  by  his  authorized  agent 
But  the  consideration  need  not  be  expressed  in  the  writing;  it  may  be 
proved,  when  necessary,  or  disproved  by  <parol  or  other  evidence."     In 
Maine  "no  estate  or  interest  in  lands,  unless  created  by  some  writing 
and  signed  by  the  grantor  or  his  attorney,  shall  have  any  greater  force 
or  effect  than  an  estate  or  lease  at  will."    In  Maryland,  as  in  Georgia, 
under  which  its  provisions  have  been  stated,  the  English  Statute  of 
Frauds  is  held  to  be  in  force.    In  Massachusetts  "all  estates  or  inter- 
ests in  lands  created  or  conveyed  without  any  instrument  in  writing, 
signed  by  the  grantor  or  by  his  attorney,  shall  have  the  force  and  effect 
of  estates  at  will  only."     In  Michigan  "Every  contract  for  the  leasing 
for  a  longer  period  than  one  year    *    *     *    of  any  lands,  or  any  interest 
in  lands,  shall  be  void  unless  the  contract  or  some  note  or  memorandum 
thereof  be  in  writing  and  signed  by  the  party  by  whom  the  lease  or  sale 
is  to  be  made,  or  by  some  person  thereunto  by  him  lawfully  authorized 
in    writing.      The    consideration    of    any    contract     or    agreement    re- 
quired by  the  provisions  of  this  chapter  to  be  in  writing,  need  not  be 
set  forth  in  the  contract  or  agreement,  or  in  the  note  or  memorandum 
thereof,  but  may  be  proved  by  any  other  legal  evidence."    In  Missis- 
sippi  "no  action   shall   be  brought  whereby    *     *     *    to  charge   any 
person  upon  the  sale  of  any  lands,  tenements  or  hereditaments,  or  the 
making  of  any  lease  thereof,  for  a  longer  term  than  one  year,     *    *    * 
unless  the  promise   or  agreement  upon   which   such   action   shall   be 
brought,  or  some  memorandum  or  note  thereof,  shall  be  in  writing  and 
signed  by  the  party  to  be  charged  therewith,  or  some  other  person  by 
him  or  her  thereunto  lawfully  authorized."     In  Missouri  "all  leases, 
estates,  interests  of  freehold,  or  terms  of  years,  or  any  uncertain  inter- 
est of,  in,  to  or  out  of  any  messuages,  lands,  tenements  or  hereditaments 
*    *    *    not  put  in  writing  and  signed  by  the  parties  so  making  or 
creating  the  same,  or  their  agents  lawfully  authorized  by  writing,  shall 
have  the  force  and  effect  of  leases  and  estates  at  will  only,  and  shall 
not.  either  in  law  or  equity,  be  deemed  or  taken  to  have  any  other  or 
greater  force."    In  New  Hampshire  "Every  estate  or  interest  in  lands 
treated  or  conveyed  without  an  instrument  in  writing,  signed  by  the 
grantor  or  his  attorney,  shall  be  deemed  an  estate  at  will  only."    In 
New  Jersey  "all  leases,  estates,  interests  of  freehold,  or  any  uncertain 


LANDI/)RD   AND   TENANT.  167 

this  subject  that  a  written  lease  should  "be  signed  by  both  par- 
ties, or  it  may  be  void  for  want  of  mutuality."48  But  it  is  clear, 

interests  of,  in,  to  or  out  of  any  messuages,  lands,  tenements  or  hered- 
itaments made  or  created,  or  hereafter  to  be  made  or  created,  *  *  * 
not  put  in  writing  and  signed  by  the  parties  so  making  or  creating  the 
same,  or  their  agents  thereunto  lawfully  authorized  by  writing,  shall 
have  the  force  and  effect  of  leases  or  estates  at  will  only,  and  shall  not, 
either  in  law  or  equity,  be  deemed  or  taken  to  have  any  other  or 
greater  force  or  effect,  any  consideration  for  making  such  parol  leases 
ot  estates,  or  any  former  law  or  usage  to  the  contrary  notwithstanding; 
ezcept,  nevertheless,  all  leases  not  exceeding  the  term  of  three  years 
from  the  making  thereof,  whereupon  the  rent  reserved  to  the  landlord, 
during  such  term,  shall  amount  to  two-thirds  part,  at  the  least,  of  the 
full  improved  value  of  the  thing  demised."  In  Ohio  "no  leases,  estates, 
or  interests,  either  of  freeholds  or  terms  for  years,  or  any  uncertain 
interest  of,  in  or  out  of  lands,  tenements  or  hereditaments,  shall  at  any 
time  hereafter  be  assigned  or  granted  unless  it  be  by  deed  or  note  in 
writing,  signed  by  the  party  so  assigning  or  granting  the  same,  or  their 
agents  thereunto  lawfully  authorized  by  writing,  or  by  act  and  opera- 
tion of  law."  In  Pennsylvania  "all  leases,  estates  or  interests  of  free- 
hold, of  term  of  years,  or  any  uncertain  interest  of,  in,  or  out  of  any 
messuages,  manors,  lands,  tenements  or  hereditaments  *  *  *  not 
put  in  writing  and  signed  by  the  parties  so  making  or  creating  the 
same,  or  their  agents  thereunto  lawfully  authorized  by  writing,  shall 
have  the  force  and  effect  of  leases  or  estates  at  will  only,  and  shall  not, 
either  in  law  or  equity,  be  deemed  or  taken  to  have  any  other  or  greater 
force  or  effect,  any  consideration  for  making  such  parol  leases  or  es- 
tates, or  any  former  law  or  usage  to  the  contrary  notwithstanding;  ex- 
cept, nevertheless,  all  leases  not  exceeding  the  term  of  three  years  from 
the  making  thereof."  In  Rhode  Island,  as  before  stated,  all  leases  for 
a  term  exceeding  one  year  must  be  in  writing,  sealed  and  signed  by  the 
lessor.  In  South  Carolina  the  English  Statute  of  Frauds  is  held  to  he 
in  force.  In  Tennessee  "no  action  shall  be  brought  whereby  to  charge 
*  *  *  any  person  *  *  *  upon  the  sale  of  any  lands,  tenements  or 
hereditaments,  or  the  making  of  any  lease  thereof  for  a  longer  term 
than  one  year,  *  *  *  unless  the  promise  or  agreement  "upon  which 
such  action  shall  be  brought,  or  some  memorandum  or  note  thereof  shall 
be  in  writing  and  signed  by  the  party  to  be  charged  therewith,  or  some 
other  person  by  him  thereunto  lawfully  authorized."  In  Texas  the 
statute  is  identical  with  that  of  Tennessee  with  regard  to  leases.  In 
Vermont  the  statute  is  the  same  as  in  Massachusetts.  In  Virginia  "no 
action  shall  be  brought  *  *  *  to  charge  any  person  *  *  *  upon 
any  contract  for  the  sale  of  real  estate  or  the  lea~se  thereof  for  more 
than  one  year,  *  *  *  unless  the  promise,  contract  *  *  *  or  some 
memorandum  or  note  thereof  be  in  writing  and  signed  by  the  party  to 
be  charged  thereby,  or  his  agent.  But  the  consideration  need  not  be  set 
forth  or  expressed  in  the  writing;  it  may  be  proved  (where  a  considera- 
tion is  necessary)  by  other  evidence."  In  Wisconsin  "Every  contract 
for  the  leasing  for  a  longer  period  than  one  year  *  *  *  of  any  lands, 
or  any  interests  in  lands,  shall  be  void  unless  the  contract  or  some  note 
or  memorandum  thereof  expressing  the  consideration  be  in  writing  and 
be  subscribed  by  the  party  by  whom  the  lease  *  *  *  is  to  be  made." 


168  LANDLORD   AND   TENANT. 

from  an  examination  of  the  cases  cited  in  support  of  this  state- 
ment, that  in  this  the  learned  authority  has  fallen  into  error. 
The  cases  cited  by  him  go  no  further  than  that  if  the  lease  is 
signed  by  the  lessee  only  it  is  void  for  want  of  mutuality.  And 
this  is  undoubtedly  the  correct  doctrine.49  But  there  is  no 
authority  for  extending  this  principle  to  cases  where  the  writ- 
ten lease  is  signed  by  the  lessor  and  not  by  the  lessee.  The 
language  of  the  original  statute,  and  of  all  the  statutes,  clearly 
imports  that  a  lease  is  valid  if  it  is  signed  by  the  party  creating 
a  leasehold  estate — i.  e.,  the  lessor. 

IT  IS  GENERALLY  HELD  THAT  A  LEASE,  WHICH  THE 
LAW  REQUIRES  TO  BE  IN  WRITING,  IS  VALID  IF  SIGNED  BY 
THE  LESSOR  ONLY. 

If  it  is  signed  by  him  it  is  a  valid  lease,  and  if  it  is  delivered 
to  and  accepted  by  the  lessee  is  binding  upon  both  parties.50 
Yet  it  is  now  generally  customary  to  have  leases  executed  in 
duplicate,  signed  by  both  parties,  each  retaining  a  copy,  and 
this  is  the  better  practice.  It  was  said  in  Michigan  that  where 
one  copy  signed  by  the  lessor  is  delivered  to  the  lessee,  and  the 
other  signed  by  the  lessee  is  delivered  to  the  lessor,  this  is  suf- 
ficient.51 But  as  the  language  of  the  court  was  with  regard 
to  a  lease  for  a  single  year,  which  might  have  been  made  by 
parol,  it  cannot  be  accorded  any  particular  weight.  The  lease 
may  be  signed  with  a  pen  and  ink,  or  with  a  lead  pencil,  or  by 
affixing  a  stamp  with  the  parties  name  on  it  if  this  is  intended 
as  a  signature.52 

"Taylor  Landl.  &  T.,  Sec.  35. 

'"McWhooter  &  Baldwin  vs.  McMahon,  10  Paige  (N.  Y.),  386. 

Chesebrough  TS.  Pingree,  72  Mich.,  438. 

Jennings  vs.  McComb,  112  Pa.  St.,  518. 
"McFarlane  vs.  Williams,  107  111.,  33. 

Traylor  vs.  Cabanne,  8  Mo.  App.,  131. 
"Campau  vs.  Lafferty,  43  Mich.,  432. 


LANDLORD   AND   TENANT.  169 

Although  it  has  been  doubted,53  the  clear  weight  of  author- 
ity supports  the  doctrine  that 

ONE  MAY  HAVE  ANOTHER  WRITE  HIS  NAME  FOR,  HIM 
AND  WHERE  THIS  IS  DONE  BY  HIS  AUTHORITY,  AND  IN  HIS 
PRESENCE,  IT  IS  HIS  PERSONAL  SIGNATURE  AND  NOT  HIS 
SIGNATURE  BY  AN  AGENT. 

And  so,  also,  the  party  may  sign  by  making  a  mark  for  that 
purpose,  which  is  usually  done  in  this  form: 

His 
John        X        Doe. 

Mark. 
Attest:     Richard  Eoe. 

AS  A  GENERAL  RULE,  IT  IS  IMMATERIAL  TO  WHAT 
PART  OF  A  DOCUMENT  A  PARTY  PUTS  HIS  NAME  PROVIDED 
HE  INTENDS  IT  AS  HIS  SIGNATURE." 

In  New  York  the  statute  requires  the  party  to  subscribe 
his  name,  which  language,  it  is  held,  requires  a  signature  at 
the  bottom  in  the  usual  place.55 

THE  EXECUTION  OF  WRITTEN  LEASES  NOT  UNDER  SEAL  BY 
AGENTS. 

What  has  been  said  as  to  the  proper  manner  of  the  execu- 
tion by  agents  of  leases  under  seal  applies,  with  equal  force, 
to  the  execution  by  agents  of  leases  not  under  seal.  In  leases 
not  under  seal,  as  well  as  in  leases  under  seal,  the  agent  makes 
himself  personally  liable  by  executing  a  lease  in  his  own  name, 
even  though  in  so  doing  he  describes  himself  as  agent.  And 
evidence  will  not  be  admitted  to  show  that  it  was  not  intended 
or  understood  that  he  should  be  personally  bound,  for  this 

"Schneider  vs.  Norris,  2  M.  &  S.,  286;  Clason  vs.  Bailey,  14  Johns. 

(N.  Y.),  484. 

"Wallace  vs.  McCollough,  1  Rich.  Eq.  (S.  C.),  426. 
"Penniman  vs.  Hartshorn,  13  Mass.,  87. 

Knight  vs.  Crockford.  1  Esp.,  190. 
"Davis  vs.  Shields,  26  Wend.,  341. 


170  LANDLORD   AND   TENANT. 

would  bo  contradicting  a  written  instrument  by  parol;  but 
there  is  this  striking  difference  between  leases  under  seal  and 
leases  not  under  seal  which  are  excuted  by  agents:  If  a  lease 
under  seal  executed  by  an  agent  does  not  upon  its  face  purport 
to  be  the  act  of  the  principal,  as  has  been  explained,  parol  evi- 
dence is  not  admissible  to  show  that  it  was  in  fact  intended 
that  the  principal  should  be  bound,  and  he  cannot  be  charged 
by  it.  But  as  to  leases  not  under  seal,  as  in  the  case  of  all 
other  written  contracts  not  under  seal  which  have  been  exe- 
cuted by  agents,  the  law  is  well  settled  that  parol  evidence 
may  be  adduced  to  charge  the  real  principal,  even  though  he 
is  not  named  in  the  instrument,  and  even  though  the  agent 
does  not  sign  as  agent,  but  as  though  he  were  the  principal. 

And  this  doctrine  applies  as  well  to  those  leases  which  the 
law  requires  to  be  in  writing  as  to  those  which  might  have 
been  made  by  parol.56 

Agencies  to  conclude  leases  are  governed  by  the  same  prin- 
ciple as  all  other  agencies,  and  for  a  complete  discussion  of 
that  branch  of  the  law  the  authors  can  not  do  better  than 
refer  the  student  to  the  admirable  work  of  Mr.  Mechem  upon 
that  topic.57 

THE  RECORDING  OF  LEASES. 

By  statute  in  many  of  the  states  leases,  in  order  to  be  valid 
against  third  parties,  who  are  bona  fide  purchasers  or  incum- 
brancers  for  value,  must  be  recorded.58  To  entitle  a 

"Higgins  vs.  Senior,  8  M.  &  W.,  834. 
Byington  vs.  Simpson,  134  Mass.,  169. 
Briggs  vs.  Partridge,  64  N.  Y.,  357. 
Texas  Land,  etc.,  Co.  vs.  Carroll,  63  Tex.,  48. 
Huntington  vs.  Knox,  7  Cush.,  371. 
"Mechem  on  Agency. 

"The  non-recording  of  a  lease  cannot  be  taken  advantage  of  by 
strangers.  To  the  title  Anthony  vs.  R.  E.  Co.,  37  N.  E.  Rep.  (Mass.), 
780. 


LANDLORD   AND   TENANT.  171 

lease  to  record  it  must  be  witnessed  and  acknowledged  in  the 
manner  required  by  the  statutes  of  the  several  states  for  any 
other  paper  or  deed  which  is  offered  for  record.  It  would  oc- 
cupy too  much  space  to  give  the  requirements  of  each  state 
as  to  the  manner  of  execution  which  entitles  a  deed  to  record. 
Leases  for  more  than  one  year  must  be  recorded  in  Arizona, 
California,  Connecticut,  Dakota,  Idaho,  Mississippi,  Rhode  Isl- 
and, South  Carolina,  Vermont  and  Texas;  leases  for  more  than 
two  years  must  be  recorded  in  New  Jersey;  leases  for  more 
than  three  years  must  be  recorded  in  Indiana,  Michigan,  Min- 
nesota, North  Carolina,  New  York,  Ohio  and  Tennessee;  for 
more  than  five  years  in  Kentucky,  Virginia  and  West  Virginia; 
for  more  than  seven  years  in  Maine,  Maryland,  Massachusetts 
and  New  Hampshire;  and  all  leases  unaccompanied  by  pos- 
session or  occupation  by  the  lessee,  or  for  more  than  twenty- 
one  years,  in  Delaware  and  Pennsylvania.  In  New  Jersey  and 
Vermont  all  assignments  and  mortgages  of  leases  are  re- 
quired by  law  to  be  recorded.  Although  it  has  been  held  other- 
wise,55 it  is  now  considered  settled  that  no  lease  need  be  re- 
corded unless  it  is  expressly  required  to  be  recorded  by  statute. 
If  a  lease  is  not  recorded  which  the  statute  requires  to  be  re- 
corded, it  is  nevertheless  valid  and  binding  upon  the  parties,58 
and  is  also  valid  and  effectual  as  against  all  parties  who  have 
actual  knowledge  or  notice  of  its  existence.57 


"Spielman  vs.  Kliest,  36  N.  J.  Eq.,  199. 
66Icard  vs.  Davis,  6  Pet.,  124. 

Center  vs.  Planter,  etc.,  Bank,  22  Fla.,  743. 

Hunter  vs.  Watson,  12  Cal.,  363. 

For  a  full  list  of  cases  on  this  proposition  see  20  Am.  &  Eng.  En- 
cyclopedia of  Law,  p.  568. 
BTId  p.  585. 


172  LANDLORD   AND   TENANT. 

THE  ACTUAL  VISIBLE  POSSESSION  OF  A  TENANT  IS  AL- 
WAYS  CONSTRUCTIVE   NOTICE  TO   THE   WOULD   OF   HIS  IN- 
TEBEST  IN  THE  LAND.58 
OF  VERBAL  LEASES.     | 

VERBAL  LEASES. 

At  the  common  law  verbal  leases  for  any  term  of  years 
were  valid,  and  this  is  still  the  law,  except  in  so  far  as  the  stat- 
ute of  frauds  has  imposed  certain  restrictions.  What  these 
restrictions  are  in  the  different  states  we  have  already  seen. 
In  all  of  the  states,  except  some  to  be  noted  later,  verbal  leases 
for  a  year  at  least  are  valid.  For  just  how  long  a  verbal  lease 
is  valid  in  any  particular  state  the  reader  can  determine  by 
consulting  foot  note  47,  page  165.  The  important  question 
which  has  arisen  with  regard  to  verbal  leases  not  made  invalid 
by  statute  is  whether  they  are  valid  if  made  to  commence  at  a 
future  day.  Upon  this  point  there  is  a  direct  and  irreconcil- 
able conflict  of  authority.  In  some  states  it  is  held  that  a 
verbal  lease  if  not  prohibited  by  the  statute  of  frauds  is  valid, 
although  it  is  to  begin  in  the  future.  In  the  judgment  of  the 
authors,  the  language  used  by  Church,  C.  J.,  expresses  the  bet- 
ter doctrine :  "A  parol  lease  for  a  year,  to  commence  in  future, 
is  valid  and  obligatory.  Such  a  lease  vests  a  present  interest 
in  the  term.  It  is  assignable  before  entry,  and  the  lessee  can 
bring  ejectment  if  possession  is  withheld.  *  *  *  The  lease, 
although  verbal,  is  as  binding  as  if  it  granted  in  praesenti  a 
term  of  one  year  in  the  premises,  which  the  testator  agreed 
to  pay  for.  It  is  like  the  sale  of  specific  personal  property  to 


MDisbrow  vs.  Jones,  Harr.  (Mich.),  48. 
Hommel  vs.  Devinney,  39  Mich.,  523. 
Russell's  Ex.  vs.  Moose's  Heirs,  3  Mete.  (Ky.),  436. 
Mekes  vs.  Lake,  25  Mis.,  71. 
Coari  vs.  Olsen.  91  111.,  273. 


LANDLORD   AND   TENANT.  173 

be  delivered."39    But  a    contrary  doctrine  is    held  in    other 

states.60 

IMPLIED  LEASES. 

Lease  contracts,  like  all  other  contracts,  may  be  implied 
from  the  situation  and  acts  of  the  parties.  By  implied  con- 
tracts, a  term  which  is  used  in  contradistinction  to  express 
contracts,  are  meant  those  contracts  which  the  parties  have 
not  formulated  in  express  terms,  but  in  which  the  law  affixes  a 
meaning  to  the  acts  of  the  parties.  It  is  not  intended  that  the 
Jaw  ever  makes  a  contract  for  parties.  The  law  imposes  duties 
and  obligations,  but  the  essence  of  a  contract  is  mutual  con- 
sent to  the  same  thing,  and  it  can  never  be  said  that  one  con- 
sents to  that  which  has  no  basis  but  legal  compulsion.  There- 
fore, it  can  never  be  said  that  one  has  entered  into  a  contract 
unless  he  has  consented  to  its  terms.  But  this  does  not  mean 
that  all  which  he  consents  to  must  be  in  words,  nor  always 
that  he  has  an  exact  and  correct  understanding  of  what  the 
contract  really  means.  A  party  is  not  allowed  to  put  his  own 
interpretation  on  his  acts  or  his  language,  and  to  say  that  by 
them  he  really  intended  this  or  that  He  is  bound  by  the  con- 
struction which  the  law  puts  upon  his  language  or  his  con- 
duct, and  he  is  conclusively  presumed  to  have  intended  this 
and  nothing  else.  This  is  one  of  the  consequences  which  flow 
from  the  legal  maxim  "ignorantia  juris,  quod  quisque  scire 
tenetur,  neminem  excusat"61  (ignorance  of  the  law,  which  every 
one  is  bound  to  know,  excuses  no  man).  With  this  understand- 
ing of  what  is  meant  by  an  implied  contract,  it  remains  to  be 

MBecar  vs.  Flues,  64  N.  Y..  518.  This  case  overrules  some  earlier 
cases  in  New  York.  See  also  Whiting  vs.  Ohlert,  52  Mich.,  462. 

nVhitting  vs.  Pittsburg  Opera  House  Co.,  88  Pa.  St.,  100;  Waif 
vs.  Dozer,  22  Kas.,  436;  Delane  vs.  Montague,  4  Gush.,  42;  Larkin  vs. 
Avery,  25  Conn.,  304. 

"Broom  Leg.  Max.,  249. 


174  LANDLORD   AND   TENANT. 

seen  from  what  acts  and  circumstances  a  lease  contract  will  be 
implied  and  the  relation  of  landlord  and  tenant  established. 
Various  important  questions  are  involved,  as,  whether  the  per- 
son occupying  is  liable  for  rent;  whether  he  is  a  tenant  in  pos- 
session and  entitled  to  notice  to  quit,  and  whether  he  is  a  ten- 
ant so  as  to  be  subject  to  the  implied  obligations  which  grow 
out  of  the  relation. 

WHERE  ONE  HAS  THE  BENEFICIAL  USE  OF  PREMISES 
BELONGING  TO  ANOTHER,  WITH  THE  OWNER'S  CONSENT, 
THE  LAW  WILL  USUALLY,  IN  THE  ABSENCE  OF  ANY  SPE- 
CIAL AGREEMENT,  IMPLY  A  CONTRACT  TO  PAY  FOR  THE 
USE  OF  THE  PREMISES  WHAT  THEY  ARE  REASONABLY 
WORTH.'2 

This  is  in  accordance  with  the  general  rule  that,  where  one 
requests  and  receives  a  benefit  from  another's  land,  in  the  ab- 
sence of  a  special  contract,  an  implied  promise  arises  to  pay 
what  it  is  reasonably  worth.  This  general  rule  has,  however, 
many  exceptions,  the  question  in  all  cases  being  what  was  the 
real  understanding  and  intent  of  the  parties  as  to  whether  or 
not  compensation  was  to  be  made  for  the  beneficial  use  of  land. 
In  the  case  of  other  implied  contracts,  this  must  be  gathered 
from  the  situations  and  relation  of  the  parties.  The  implied 
contract  to  pay  rent  may  be  found  even  where  the  tenant  is  a 
son  of  the  owner.  So,  when  a  tenant  whose  lease  has  expired 
remains  in  possession  with  the  consent  of  his  landlord,  there 
is  an  implied  promise  that  he  will  continue  to  pay  rent  at  the 
rate  wrhich  he  was  paying  when  his  term  expired.  And  when 
one  is  told  that  he  may  occupy  the  premises  at  a  named  rent, 
and,  without  expressly  agreeing  to  pay  this  rent,  occupies  the 
premises,  his  occupation  is  held  to  imply  a  promise  to  pay  the 
rent  fixed  by  the  landlord.  And  where  one  makes  an  agree- 

"Fak  vs.  Oats,  16  111.,  106. 

Chambers  vs.  Ross,  25  N.  J.  L.,  293;  Dwight  vs.  Cutler,  3  Mich., 
566;  Dell  Gardner,  25  Ark.,  134;  Harlan  vs.  Emery,  46  Iowa,  538. 


LANDLORD   AND   TENANT.  175 

ment  to  take  a  lease  and  enters  under  that  agreement,  he  is 
held  for  the  stipulated  rent  on  an  implied  contract,  although, 
after  taking  possession,  he  repudiates  the  agreement  and  re- 
fuses to  execute  the  lease.63  And  the  mere  taking  of  the  key 
of  the  house  is  sufficient  under  some  circumstances  to  consti- 
ture  an  acceptance  of  possession  to  sustain  an  action  for  rent.64 
And  when  one  enters  into  possession  under  a  lease  that  is 
void  as  to  its  duration  under  the  statute  of  frauds,  he  is  never- 
theless held  during  his  occupation  for  rent  at  the  rate  fixed 
by  the  lease.65  And  when  one  enters  into  possession  under 
a  lease  that  is  void  because  made  on  a  Sunday,  he  still  enters 
as  a  tenant,  and  is  subject  to  a  tenant's  obligations 
to  pay  what  the  premises  are  reasonably  worth.66  With 
regard  to  .  persons  who  enter  into  possession  in  pursuance 
of  an  executory  contract  to  purchase  which  is  never  carried 
out,  it  may  be  said  generally  that  if  they  remain  in  possession 
after  the  treaty  is  broken  off  they  are  liable  for  rent.67  And 
whether  they  are  liable  for  rent  before  the  treaty  is  broken 
off  depends  upon  who  is  to  blame  for  the  non-fulfillment  of  the 
contract.  If  the  owner  of  the  land  is  at  fault  he  is  not  entitled 
to  rent  for  the  time  during  which  the  contract  was  pending. 
If  the  vendee  is  at  fault  he  is  liable  for  rent  during  the  whole 
time  of  his  occupancy.68 

It  would  be  a  manifest  wrong  to  permit  one  who  had  in- 
duced another  to  enter  into  possession  of  property  under  an 
agreement  that  he  would  sell  it  to  him,  and  on  his  breaking 
this  contract  to  take  advantage  of  his  wrong  and  charge  the 
party  in  possession  on  a  contract  to  which  he  never  agreed. 

"Riggs  vs.  Bell.  5  T.  R.,  471. 

"Smith  vs.  Wooding,  20  Ala.,  324;  Goned  vs.  Thompson,  4  Meto., 
224. 

"Dwight  vs.  Cutler,  3  Mich.,  566. 
""Little  vs.  Martin,  3  Wen.,  219. 
67Vinz  vs.  Beatty,  65  Wis.,  645. 
""Hammerton  vs.  Stead,  2  B.  &  C.,  278. 


176  LANDLORD   AND   TENANT. 

And,  on  the  other  hand,  it  would  be  equally  unjust  to  permit 
a  party  who  had  obtained  possession  under  an  agreement  that 
he-  would  purchase,  to  repudiate  his  contract  and  enjoy  the  use 
of  the  property  without  compensation.69 

The  next  important  question  involved  in  the  present  dis- 
cussion is  how  far  the  mere  delivery  of  possession  by  an  owner 
to  another  raises  an  implied  tenancy  so  as  to  impose  upon  the 
party  receiving  the  possession  the  implied  obligations  of  a 
tenant.  Upon  this  point  it  may  be  said  that,  whether  the 
party  to  whom  possession  is  entrusted  is  to  be  regarded 
strictly  as  a  tenant  or  not,  he  is  at  least  subject  to  tho^e 
obligations  of  a  tenant  which  require  loyalty  to  the  title 
under  which  he  received  possession.  For  not  only  is 
a  tenant  estopped  from  disputing  his  landlord's  title,  but  so 
also  is  every  one  who  receives  possession  of  land  from  an- 
other, so  long  as  he  holds  quietly  under  that  possession,  estop- 
ped from  disputing  its  legality.  As  to  the  third  important 
question  involved  in  the  inquiry  whether,  in  a  given  case,  there 
is  an  implied  tenancy,  viz.,  whether  the  party  occupying  is  to 
be  considered  as  a  tenant  so  that  he  is  entitled  to  notice  to 
quit,  and  not  to  be  dispossessed  except  by  legal  process,  the 
general  rule  is  this: 

THE  LAW  FAVORS  THAT  CONSTRUCTION  OF  AN  OCCU- 
PANCY WHICH  PUTS  IT  ON  THE  BASIS  OF  A  TENANCY,  AND 
WHICH  REGARDS  AN  OCCUPANCY  AS  POSSESSION;  AND 
WHERE  IT  IS  POSSIBLE  AN  OCCUPANCY  WILL  BE  CON- 
STRUED AS  POSSESSION.™ 

69For  a  satisfactory  discussion  of  this  question,  see  Dwight  vs.  Cut- 
ler, 3  Mich,,  566.  > 

70Butler  vs.  Bertrand,  56  N.  W.  Rep..  342. 
Hogsett  vs.  Ellis,  17  Mich.,  351. 


I.AXDLOHI)    AND    TENANT.  1<1 

AN  AGREEMENT  FOR  A  LEASE. 

An  agreement  for  a  lease  is  an  executory  contract  by  which 
one  party  agrees  to  execute  and  the  other  to  accept  a  lease, 
but  which  of  itself  conveys  no  legal  interest  in  the  land.  It 
does,  however,  create  an  equitable  interest,  and  a  court  of 
chancery  will,  in  a  proper  case,  decree  specific  performance  of 
the  contract  and  put  a  party  to  the  contract  in  possession  of 
the  premises  bargained  for.  This  is  to  be  taken  with  this 
qualification — that  specific  performance  is  never  a  matter  of 
absolute  right,  but  always  rests  in  the  sound  discretion  of  the 
<c)urt.  It  is  often  difficult  to  determine  whether  a  particular 
agreement  is  an  actual  lease  or  simply  a  contract  for  a  lease.71 
This  must  be  determined  by  considering  what  was  the  real 
understanding  and  intent  of  the  parties.  The  form  of  words 
used  by  them  is  not  decisive  of  the  question,  for,  while  the 
words  "agree  to  lease"  import  a  contract  for  a  lease,  yet,  where 
possession  is  taken  and  there  is  no  indication  that  any  further 
or  more  formal  instrument  is  contemplated,  they  may  be  con- 
strued to  amount  to  a  present  demise.  On  the  other  hand,  while 
the  words  "doth  let,"  please"  or  "demise"  import  an  executed 
lease,  yet  if,  from  a  consideration  of  the  whole  case,  it  appears 
that  another  and  formal  contract  is  to  be  executed  before  it  be- 
comes operative,  they  may  be  construed  as  amounting  only  to  a 
contract  for  a  lease.72  Again,  even  where  it  appears  clear  that 

"Tillman  vs.  Fuller,  13  Mich.,  113;  Hallett  vs.  Wylie,  3  Johns.,  44; 
Cheney  vs.  Newberry,  67  Cal.,  125;  Kabley  vs.  Worcester  Gas  Co.,  102 
Mass.,  392;  Curling  vs.  Mills,  7  Scott  N.  R.,  709;  where  a  building  con- 
tract provides  that  the  builder  shall  occupy  until  the  rent  pays  for  the 
building,  Billings  vs.  Canney,  57  Mich.,  425;  but  see  People  vs.  Gillis, 
24  Wend.,  201;  Jenkins  vs.  Eldredge,  3  Story  (U.  S.),  325;  and  usually 
an  agreement  with  a  tenant  in  possession  for  a  further  term  will  be 
construed  to  be  a  present  demise.  Shaw  vs.  Farnsworth.  108  Mass., 
358;  Kimball  vs.  Cross.,  136  Mass.,  300;  Weld  vs.  Traip,  14  Gray,  330; 
an  agreement  to  give  a  further  term  for  five  years  to  begin  thirty  days 
after  lessor's  death  and  to  provide  for  it  in  his  will  was  held  to  be 
only  a  contract  for  a  lease.  Delashman  vs.  Berry,  20  Mich.,  292;  agree- 
ment for  a  lease  with  privilege  of  buying  held  to  be  a  lease.  Haven  vs. 
Wakefield.  39  111.,  509. 


178  LANDLORD   AND   TENANT. 

another  and  more  formal  lease  was  to  be  executed  by  the  par- 
ties, yet  if  possession  has  actually  been  delivered  and  taken, 
the  agreement  under  which  possession  was  taken  will  usually 
be  construed  to  be  a  present  demise  and  the  provision  for  a 
formal  lease  to  be  executed  thereafter  as  a  covenant  in  the 
nature  of  a  covenant  for  further  assurance.73  But  there  is  so 
much  apparent  conflict  in  the  authorities  that  little  can  be  said 
but  that  every  case  depends  upon  its  own  facts,  and  the  guiding 
principle  is,  as  in  the  interpretation  of  all  contracts,  that  the 
real  intent  and  understanding  of  the  parties  must  govern.74 
Usually,  where  the  precise  terms  of  the  tenancy  are  not  fixed, 
the  contract  wrill  be  construed  as  an  agreement  for  a  lease,  and 
not  as  a  present  demise.75  Where  there  is  an  agreement  to 
lease,  and  the  term  is  to  begin  upon  the  performance  of  a  con- 
dition or  the  happening  of  an  event,  it  will  be  construed  to  be 
a  contract  for  a  lease  before  the  performance  of  the  condition 
or  the  happening  of  the  event,70  but  afterwards  to  be  a  demise.77 

"Harrison  vs.  Farmer,  76  Ala.,  loT. 
Jackson  vs.  Moncrief,  5  Wend..  HG. 
Jackson  vs.  Delacroix.  2  Wend..  433. 
McGrath  vs.  Boston,  103  Mass.,  369. 
Griffin  vs.  Knisely,  75  111..  411. 
Morgan  vs.  Powell,  8  Jur.,  1123. 
73Doe  vs.  Ries,  8  Bing.,  178. 
Jackson  vs.  Kisselbrack.  10  Johns.,  336. 

74Where  a  demise  was  executed  for  a  term  to  begin  in  future  but 
in  the  same  instrument  the  tenant  was  permitted  to  occupy,  before 
the  term  began,  rent  free,  he  was  held  to  be  in  by  virtue  of  a  present 
demise.     Bacon  vs.  Bowdoin,  22  Pick.,  401;  S.  P.  Wood  vs.  Crocker,  13 
Gray.  213;   an  agreement  in  a  land  contract  that  the   vendor  might 
remain  in  possession  until  the  purchaser  paid  a  certain  mortgage,  held 
to  be  a  lease.     Hunt  vs.  Comstock,  15  Wend.,  665. 
"Brown  vs.  N.  Y.  C.  R.  R.,  44  N.  Y.,  79. 
Haughery  vs.  Lee.  17  La.  Am.,  22. 
Wright  vs.  Trevisant,  3  C.  &  P.,  441. 
76Buell  vs.  Cook,  4  Conn.,  238. 
McGaunt  vs.  Wilbur,  1  Cow.,  257. 
Wood  vs.  Clarke,  9  Jur.,  426. 

774  Shaw  vs.  Farnsworth,  supra;  even  though  there  is  an  agreement 
for  the  execution  of  a  formal  lease.    Poole  vs.  Bently,  12  East.,  168. 


LANDLORD    AND    TENANT.  179 

SUB-LEASES,  OR  UNDER-LEASES. 

As  the  word  itself  suggests,  a  sub  or  under  lease  is  a  lease 
made  by  one  who  is  himself  a  tenant  of  the  premises  which  he 
leases.  As  will  be  seen  more  fully  hereafter,  when  we  come 
to  treat  of  the  covenant  against  sub-letting  and  assignments, 
every  tenant  has  the  same  right  to  lease  or  otherwise  dispose 
of  his  interest  in  the  property  that  his  landlord  has,  unless  this 
right  is  restrained  or  abridged  by  the  provisions  of  the  lease 
under  which  he  holds.  He  may  lease  the  whole  or  any  part 
of  his  holding  for  the  whole  or  any  part  of  the  term  during 
which  he  is  entitled  to  possession.  But,  as  it  is  evident  that 
no  man  can  lease  or  sell  or  otherwise  convey  lawful  title  to 
more  than  he  himself  possesses,  the  possession  and  rights  of 
the  sub-tenant  must  always  be  subject  to  the  terms  and  lim- 
itations of  the  original  lease.  The  under-lease  may  contain 
as  many  additional  terms  and  restrictions  as  the  parties  see 
fit  to  agree  upon,  but  it  cannot  confer  upon  the  under-tenant 
any  greater  rights  in  the  premises  than  the  original  tenant 
has  under  nis  lease. 

AN  UNDER-LEASE  DOES  NOT  MAKE  THE  UNDER-TENANT 
LIABLE  ON  THE  COVENANTS  OF  THE  ORIGINAL  LEASE,  BUT 
HIS  POSSESSION  IS  SUBJECT  TO  ITS  CONDITIONS. 

For  instance,  if  the  original  lease  reserves  a  rental  of  one 
hundred  dollars  per  month,  and  provides  for  the  forfeiture  of 
the  term  if  the  rent  is  not  paid,  the  original  landlord  has  no 
claim  for  his  rent  against  the  sub-tenant  if  the  original  tenant 
fails  to  pay.  He  cannot  sue  him  for  the  rent  reserved  in  the 
original  lease,  nor  can  he  sue  him  for  the  use  and  occupation 
of  the  premises,  whether  the  under-tenant  has  or  has  not  paid 
rent  to  his  own  landlord,  the  original  tenant.  But  the  landlord 
in  chief  may  forfeit  the  original  lease  for  non-payment  of  rent, 


180  LANDLORD    AND    TKNA.NT. 

and  when  this  has  been  done  the  original  tenant's  estate  is 
destroyed,  and  so  also  is  the  under-tenant's  estate,  as  it  is  but 
a  part  of  it.  Let  the  reader  but  grasp  this  idea  clearly,  that 
the  sub-lease  is  simply  a  transfer  of  a  part  of  the  estate  created 
by  the  original  lease.  As  it  is  an  axiom  in  mathematics  that 
the  whole  is  greater  than  any  of  its  parts,  so,  in  that  part  of 
the  law  now  under  consideration,  it  is  self-evident  that  what- 
ever destroys  the  whole  must  destroy  all  of  its  parts;  and,  also, 
that  the  part  cannot  be  greater  in  any  respect  than  the  whole. 
Whatever  restrictions,  limitations  and  conditions  are  attached 
to  the  whole  must  inhere  in  every  part.  Therefore,  it  is  said 
that  every  sub-lease  is  subject  to  the  conditions  and  limita- 
tions of  the  original  lease. 

But  it  is  not  intended  by  this  that  the  landlord  has  any 
claim  against  an  under-tenant  upon  the  covenants  of  the  orig- 
inal lease. 

THERE  IS  NO  PRIVITY  OF  CONTRACT  BETWEEN  THE 
ORIGINAL  LANDLORD  AND  A  SUB-LESSEE. 

The  landlord,  for  any  breach  of  the  covenants  or  conditions 
of  the  original  lease,  must  seek  his  remedy  against  the  one  who 
contracted  with  him — i.  e.,  the  tenant  in  chief;  the  under-tenant 
being  only  responsible  upon  his  own  covenants  to  the  party 
with  whom  he  covenanted.  And  herein  is  found  the  essential 
difference  between  the  obligations  of  an  under-lessee  and  those 
of  an  assignee. 

AN  ASSIGNMENT  MAKES  THE  ASSIGNEE  LIABLE  UPON 
ALL*THOSE  COVENANTS  OF  THE  LEASE  WHICH  RUN  WITH 
THE  LAND. 

It  establishes  a  privity  of  estate  between  the  landlord  and 
the  assignee.  It  puts  the  assignee  into  the  shoes  of  the  orig- 
inal tenant  and  makes  him  directly  liable  to  the  landlord. 


LANDLORD    AM)    TENANT.  181 

HOW  AN  UNDER-LEASE  IS  TO  BE  DISTINGUISHED  FROM  AN 

ASSIGNMENT. 

There  has  been  some  confusion  in  the  books,  and  some  con- 
flict in  the  cases,  as  to  what  should  be  held  to  be  an  under- 
lease and  what  an  assignment.  Inasmuch  as  the  rights  and 
remedies  of  a  lessor  are  much  more  extensive  against  an  as- 
signee than  against  an  under-lessee,  it  is  important  that  the 
rule  of  dernarkation  should  be  clearly  pointed  out.  It  is  said 
that 

AN  ASSIGNMENT  IS  A  TRANSFER  OF  THE  WHOLE  IN- 
TEREST OF  THE  ASSIGNOR  IN  THE  LEASE  TO  THE  ASSIGNEE. 

It  is  the  putting  of  the  assignee  into  the  shoes  of  the  as- 
signor as  to  the  lease  contract.  It  is,  in  fact,  an  agreement 
between  the  assignor  and  the  assignee  by  virtue  of  which  the 
assignee  is  substituted  in  place  of  the  assignor  in  the  contract, 
so  as  to  entitle  the  assignee  to  all  the  rights  which  the  assignor 
has,  and  subject  him  to  all  the  obligations  which  run  with  the 
land,  which  reste.1  upon  the  assignor,  as  1o  the  leasehold  prop- 
erty.78 Anything  less  than,  or  different  from,  this  cannot  be 
considered  an  assignment. 

The  confusion  spoken  of  arose  from  the  idea  that  where  a 
lessee  agreed  with  another  that  the  latter  should  take  the 
leasehold  premises  for  the  whole  of  the  assignor's  unexpired 
term,  this  in  itself  amounted  to  an  assignment,  without  regard 
to  the  intention  of  the  parties  or  the  terms  of  the  contract. 
And  so  it  was  laid  down  by  the  old  text  writers  and  established 
by  decisions  that  "when  the  whole  term  is  made  over  by  the 
lessee,  although  in  the  deed  by  which  that  is  done  the  rent  and 
a  power  of  re-entry  for  non-payment  are  reserved  to  himself, 
and  not  to  the  original  lessor,  yet  the  instrument  amounts  to 
an  assignment,  and  not  to  an  under-lease."79 

78Craig  vs.  Summers.  47  Minn..  189;  15  I,.  R.  A..  2:!C>. 

78Wood  Landl.  T.  S..  330;  Pluck  vs.  Digges,  5  Bligb.  N.  S.,  31. 

Hicks  vs.  Downing,  1  Ld,  Raym..  99. 

Palmer  vs.  Edwards,  1  Doug.,  187. 


182  LANDLORD    AND    TENANT. 

But  it  is  clear  that  this  notion  is  not  sound.  Such  a  con- 
struction is  not  in  accordance  with  the  intention  of  the  parties. 
It  is  making  a  contract  for  them  which  they  did  not  make  and 
did  not  intend  to  make,  and  this,  it  cannot  too  often  be  repeat- 
ed, is  beyond  the  province  of  the  law.  For  these  reasons  the 
ancient  doctrine  has  been  overthrown,  and  the  modern  decis- 
ions as  to  what  shall  be  held  to  be  an  under-lease  and  what 
an  assignment  fully  establish  the  principle  which  has  been 
stated  in  the  text.80 

AN  ASSIGNEE  IS  BOUND  BY  COVENANTS  WHICH  BUN 
WITH  THE  LAND.si 

We  have  seen  that  a  principal  distinction  between  an  un- 
der-lessee  and  an  assignee  is  that  the  latter  is  bound  by  cove- 
nants which  run  with  the  land,  while  the  former  is  not.  The 
rule  is  a  technical  one,  as  indeed  are  many  other  rules  of  the 
law  of  real  property.  It  does  not  seem  in  harmony  with  the 
rule  of  law  which  prevails  with  regard  to  assignees  of  merely 
personal  contracts,  as  a  very  simple  example  will  illustrate. 
If  the  owner  of  land  contracts  with  B.  that  B.  shall  build  a 
house  upon  it,  and  B.  assigns  this  contract  to  C.,  who  agrees 
with  B.  to  fulfil  the  contract  in  B.'s  place,  or,  in  other  words, 
to  be  substituted  in  B.'s  place  in  the  contract,  this  does  not 
make  C.  liable  to  the  owner  of  the  land  to  build  the  house. 
There  is,  as  between  the  owner  of  the  land  and  C.,  no  privity 
of  contract,  and  the  transfer  of  B.'s  rights  in  the  contract  to 

*°An  instrument  transferring  a  lessee's  whole  term  but  at  an  In- 
creased rent  and  with  a  covenant  for  delivery  of  possession,  is  an 
under-lease  and  not  an  assignment. 

Collamer  vs.  Kelley,  12  Iowa.  319. 

The  law  in  Massachusetts  is  the  same: 

McNeil  vs.  Kendall,  128  Mass.,  245. 

Dunlap  vs.  Bullard,  131  Mass..  161. 

See  also  Martin  vs.  O'Conner,  43   Barb.    (N.  Y.),  514;    Post  v«. 
Kearney,  2  N.  Y.,  394. 

"St.  Joseph  &  St.  L.  R.  Co.  vs.  St.  Louis,  I.  M.  &  S.  R.  Co.,  135 
Mo..  173;  33  L.  R.  A.,  007. 


LANDLORD   AND   TENANT.  183 

C.  does  not  create  any  privity  of  contract;  or,  in  simpler  lan- 
guage, does  not  establish  any  contract  relation  between  the 
owner  of  the  land  and  C.82  But  if  the  owner  of  land  makes 
a  lease  to  B.  reserving  rent,  and  B.  assigns  his  lease  to  C., 
the  latter,  on  taking  possession  of  the  land,  becomes  liable  to 
the  owner  of  the  land  for  the  rent  which  falls  due  while  he  is 
in  possession  under  his  assignment.  This  would  appear  to  be 
an  anomaly  in  the  law.  The  general  rule  of  the  law  is  that  no 
one  is  entitled  to  sue  upon  a  contract  except  one  who  is  a  party 
to  it — that  is,  one  to  whom  the  contract  promise  was  made. 
Ordinarily  a  person  cannot  sue  upon  a  promise,  even  though 
the  promise  was  made  for  his  benefit,  unless  the  promise  was 
made  to  himself.  Yet  the  owner  of  land  may  sue  an  assignee 
of  a  lease  upon  those  covenants  of  the  lease  which,  as  it  said, 
run  with  the  land,  although  the  assignee  has  made  no  contract 
with  the  owner  of  the  land. 

The  explanation  of  this  apparent  anomaly  is  found  in  the 
doctrine  that,  between  landlord  and  tenant,  there  subsists  not 
only  a  privity  of  contract,  but  also  what  is  called  a  privity  of 
estate.  Privity  of  contract  means  only  the  contract  relation 
which  exists  between  the  parties  to  a  contract. 

PRIVITY  OF  ESTATE  MEANS  MUTUAL  OB  SUCCESSIVE  RE- 
LATIONSHIP TO  THE  SAME  ESTATE  IN  LANDS.  • 

It  must  be  admitted  that  this  is  not  very  definite,  but  it  is 
as  clear  as  the  nature  of  the  case  admits.  Now,  the  rule  of 
law  as  to  the  rights  and  obligations  which  grow  out  of  privity 
of  estate,  broadly  stated,  is  this: 

PEOPLE  WHO  SUCCEED  ONE  ANOTHER  IN  THE  SAME  ES- 
TATE IN  LANDS,  ARE  INVESTED  WITH  ALL  THE  RIGHTS, 
AND  ARE  SUBJECT  TO  ALL  THE  OBLIGATIONS,  WHICH  IN- 
HERE IN  THAT  ESTATE. 

KFor  a  case  illustrating  this  principle,  see  King  vs.  Southern  P. 
Co.,  109  Cal..  96;  29  L.  R.  A.,  755. 


184  LANDLORD    AND    TENANT. 

Or,  to  state  the  rule  in  another  form  of  words,  by  virtue  of 
his  privity  of  estate  one  who  succeeds  another  in  a  given  estate 
in  lands  is  entitled  to  the  benefit  and  is  subject  to  the  obliga- 
tions of  those  covenants  which  run  with  the  land.  A  familial- 
example  of  such  a  covenant  is  the  covenant  of  warranty  in  a 
deed  of  land.  This  covenant  enures  not  only  to  the  benefit  of 
the  grantee  in  the  deed,  but  also  to  the  benefit  of  everybody 
who  succeds  to  the  same  title,  no  matter  how  remote  in  the 
line  of  succession,  and  also  regardless  of  the  manner  in  which 
he  acquired  the  title. 

But  this  privity  of  estate  does  not  involve  privity  of  con- 
tract, and  it  is  to  be  distinguished  from  it.  From  the  differ- 
ence between  the  two  privities  flow  two  consequences — one 
substantial,  and  the  other  technical.  The  substantial  conse- 
quence is  that,  there  being  no  privity  of  contract  between  an 
assignee  of  a  lease  and  the  landlord,  the  assignee  is  not  bound 
by  all  the  covenants  of  his  assignor,  but  only  by  those  which 
run  with  the  land.83  The  technical  consequence  is  that,  as  the 
law  does  not  regard  the  assignee  as  being  the  covenanting 
party,  an  action  of  covenant  will  not  lie  against  him,  but 
the  proper  form  of  action  against  him  is  an  action  of  debt ;  be- 
cause, although  he  did  not  enter  into  the  covenant,  yet,  by 
virtue  of  the  assignment,  he  succeeds  to  the  obligations  of  the 
covenant.  And  this  rule  illustrates  in  a  striking  manner  the 
essential  difference  between  the  action  of  covenant  and  the 
action  of  debt  at  the  common  law. 

WHAT  COVENANTS  RUN  WITH  THE  LAND. 

The  general  nature  of  covenants  which  run  with  the  land 
is  such  that  they  must  touch  or  concern  the  land  itself;  they 
must  be  entered  into  by  those  who  are  creating  or  accepting 

"Consolidated  Coil  Co.  vs.  Peers,  166  111..  361;  38  L.  R.  A.,  624. 


LANDLORD    AND    TENANT.  185 

a  legal  estate  in  the  land;  they  are  a  part  of  the  consideration 
for  the  creation  or  acceptance  of  the  estate,  and  they  run  with 
the  land  only  so  long  as  the  particular  estate  in  the  land  to 
which  they  are  attached  endures. 

When  the  particular  estate  expires,  whether  by  lapse  of 
time,  a  merger  having  taken  place,  or  otherwise,  the  covenants 
attendant  upon  the  estate  perish  with.  it.  As  between  a  land- 
lord and  the  assignee  of  the  lease,  the  following  covenants  have 
been  held  to  run  with  the  land,  and  to  bind,  or  enure  to  the  ben- 
efit of,  the  assignee  personally:  The  covenant  for  quiet  enjoy- 
ment;84 the  covenant  for  further  assurance;85  to  renew  the 
lease;86  to  repair;87  to  build  a  wall  on  the  land;88  for  a  right 
of  way;89  to  cultivate  the  land  in  a  particular  manner;90  to 
reside  on  the  premises;01  not  to  carry  on  a  particular  trade;92 
to  keep  the  premises  insured;93  to  grind  at  the  lessor's  mill;94 
to  erect  a  building  on  the  demised  land;95  to  pay  rent;96  lessor's 
covenant  not  to  let  a  site  for  the  establishment  of  a  rival  busi- 


"Noke  vs.  Awder,  I.  Cro.  Eliz..  436. 

Campbell  vs.  Lewis,  3  B..&  A.,  39:.'. 

Shelton  vs.  Codman,  3  Cush.,  318. 
"Middlemore  vs.  Goodale,  Cro.  Car.,  503. 
'"Roe  vs.  Hayley,  12  East.,  464. 

Blackmore  vs.  Boardman,  28  Mo.,  420. 

Piggot  vs.  Mason,  1  Paige,  Ch.  412. 
"Gordon  vs.  George,  12  Ind.,  408. 

""Spencer's  Case,  3  Coke,  16;   1  Smith's  Lead.  Gas.,  22. 
89Bush  vs.  Calls,  1  Show.,  389. 
»°Cockson  vs.  Cock,  Cro.  Jac.,  125. 

Gordon  vs.  George,  12  Ind.,  408. 
91Mayor  of  Congleton  vs.  Pattison,  10  East,  136. 
92Tatem  vs.  Chaplin,  2  H.  Bl.,  133. 
"Vernon  vs.  Smith,  5  B.  &  A.,  1.     ' 
94Vyvyan  vs.  Arthur,  1   B.  &  C.,  415. 
95Sampson  vs.  Easterby,  9  B.  &  C..  505. 
96Hurst  vs.  Rodney,  1  Wash.  C.  C.,  375. 

Howland  vs.  Coffin,  12  Pick.,  125. 

Main  vs.  Feathers,  21  Barb.,  646. 

Demarest  vs.  Willard,  8  Cow.,  206. 


186  LANDLORD   AND   TENANT. 

ness;97  not  to  sell  any  timber  off  the  demised  premises;98  to 
pay  for  buildings  erected  by  lessee/19 

THE  PARTS  OF  A  LEASE. 

We  have  seen  that  the  relation  of  landlord  and  tenant  is 
one  which  subsists  in  a  contract  called  a  lease,  and  have  con- 
sidered the  general  nature  and  qualities  of  this  contract  and  of 
the  obligations  and  duties  devolving  upon  those  who  are  parties 
to  it.  We  are  now  to  make  a  more  particular  examination  of 
this  contract,  of  its  usual  form,  of  its  necessary  parts,  of  the 
rights  which  it  confers  and  the  obligations  which  it  imposes. 
In  order  that  the  reader  may  have  a  clearer  understanding  of 
the  discussion  which  is  to  follow,  a  form  of  lease  in  general  use 
is  here  presented: 

DATE  OF  LEASE— PARTIES  TO  LEASE. 

This  Indenture,  made  this  seventh  day  of  December,  in  the 
year  one  thousand,  eight  hundred  and  ninety-three,  between 
A.  B.,  party  of  the  first  part,  and  C.  D.,  party  of  the  second 
part,  witnesseth: 

OPERATIVE    WORDS    OF    LEASE— DESCRIPTION    OF    LEASED 
PROPERTY— THE  TERM. 

The  said  party  of  the  first  part,  in  consideration  of  the  cove- 
nants and  agreements  herein  to  be  kept  and  performed  by  the 
said  party  of  the  second  part,  doth  hereby  demise  and  let  to 
the  said  party  of  the  second  part  that  certain  building,  mes- 
suage and  tenement,  with  its  appurtenances  and  heredita- 
ment, known  as  number  155  WTest  Congress  Street,  in  the  City 
of  Detroit,  Michigan,  for  the  term  of  five  years,  beginning  on 
the  first  day  of  January,  in  the  year  one  thousand  eight  hun- 

"Normaii  vs.  Wells,  17  Wend..  136. 
'"Hunt  vs.  Danforth,  2  Curt.  C.  C.,  592. 
"Verplanck  vs.    bright,  23  Wend.,  506. 


LANDLORD   AND   TENANT.  187 

RENT  RESERVED— RESTRICTION  ON  USE. 

dred  and  ninety-four,  the  said  party  of  the  first  part  reserving 
unto  himself  and  the  said  party  of  the  second  part  yielding 
and  paying  therefor  an  annual  rent  of  four  hundred  dollars, 
payable  monthly  in  advance,  the  said  premises  to  be  used  for 
a  dwelling  house,  and  for  no  other  purpose. 

COVENANT  FOR  QUIET  ENJOYMENT— RE-ENTRY  CLAUSE. 

And  the  said  party  of  the  first  part  doth  hereby  covenant 
and  agree  to  and  with  the  said  party  of  the  second  part  that 
the  said  party  of  the  second  part,  on  keeping  and  performing 
the  covenants  and  agreements  by  him  herein  stipulated  to  be 
kept  and  performed,  shall  and  may  peaceably  and  quietly  have, 
hold  and  enjoy  the  said  demised  premises  for  the  term  afore- 
said; provided,  however,  that  if  default  shall  be  made  in  the 
payment  of  any  installment  of  the  rent  herein  reserved,  or  in 
the  keeping  or  performance  of  any  of  the  covenants  or  agree- 
ments herein  stipulated  to  be  kept  and  performed  by  the  said 
party  of  the  second  part,  then  it  shall  be  lawful  for  the  said 
party  of  the  first  part  to  re-enter  into  and  re-possess  the  said 
demised  premises,  and  the  said  party  of  the  second  part  and 
each  and  every  other  occupant  to  remove  and  put  out. 

COVENANT  TO  PAY  RENT. 

And  the  said  party  of  the  second  part  does  hereby  hire  and 
rent  the  said  demised  premises  for  the  term  aforesaid,  and  does 
covenant  and  promise  to  pay  to  the  said  party  of  the  first  part 
the  rent  herein  reserved  as  the  same  becomes  due. 

COVENANT  TO  REPAIR. 

The  said  party  of  the  second  part  further  covenants  and 
agrees  that  he  will  at  his  own  expense,  during  the  continuance 
of  this  lease,  keep  the  said  demised  premises  and  every  part 


188  LANDLORD    AND   TENANT. 

thereof  in  as  good  repair,  and  at  the  expiration  of  the  term 
yield  and  deliver  up  the  same  in  like  condition  as  when  taken, 
reasonable  use  and  wear  thereof  and  damage  by  the  elements 
excepted. 

COVENANT  NOT  TO  SUB-LET  OR  ASSIGN. 

And  the  said  party  of  the  second  part  further  covenants 
and  agrees  that  he  will  not  assign  or  transfer  this  lease,  or  sub- 
let the  said  demised  premises,  or  any  part  thereof,  without  the 
consent  in  writing  of  said  party  of  the  first  part. 

ATTESTATION  CLAUSE. 

In  witness  whereof,  the  said  parties  have  hereunto  set  their 
hands  and  seals,  the  day  and  year  first  above  written. 

A.  B (L.  S.) 

C,  D (L.  S.) 

THE  DATE  OF  A  LEASE. 

While  it  is  usual  to  state  in  a  lease  or  written  instrument 
the  date  upon  which  it  is  executed,  the  statement  is  only  use- 
ful in  so  far  as  it  is  a  correct  memorandum  of  the  time  when 
the  paper  was  in  fact  executed,  i.  e.,  signed,  sealed  (where 
sealing  is  necessanT)  and  delivered. 

Xo  written  instrument  can  take  effect  or  become  operative 
as  such  until  delivery.  The  date  stated,  therefore,  considered 
as  a  date  merely,  is  a  mere  memorandum  which  may  be  shown 
to  be  incorrect,  a  rule  which  probably  grows  out  of  a  common 
experience  in  business  that  many  papers  prepared  for  execu- 
tion are  not  in  fact  executed  for  a  considerable  time  after  the 
period  set  for  their  execution.  But  while  the  statement  in  a 
lease  that  it  was  executed  on  a  given  date  is  not  important 
and  if  incorrect  may  be  shown  by  other  evidence  to  be  so.  yet 
the  date  stated  in  the  lease  may  be  important  for  other  pur- 


LANDLORD    AND    TENANT.  189 

poses.  Usually  it  may  be  said  that  where  in  any  part  of  the 
instrument  a  reference  is  made  to  the  date  as  a  point  of  time 
from  which  anything  is  to  be  reckoned  the  date  stated  in  the 
lease  is  the  day  from  which  the  reckoning  is  to  be  made  and 
not  the  day  on  which  the  lease  is  actually  executed.  On  the 
other  hand,  where  the  language  imports  that  the  parties  have 
in  mind  the  time  when  the  lease  is  actually  executed  the  lease 
will  be  construed  accordingly  and  without  reference  to  the  date 
given  in  the  lease. 

EVERY  LEASE  WHICH  THE  LAW  REQUIRES  TO  BE  IN 
WRITING  MUST  CONTAIN  THE  NAME  OF  THE  LESSOR  AND 
LESSEE. 

If  it  lacks  their  names  or  the  name  of  either  it  is  said  to  be 
void.  But  it  is  of  no  consequence  that  a  middle*  name  or  initial 
is  omitted  or  that  a  party  is  mentioned  by  his  initials.  It  is 
sufficient  that  the  name  given  will  designate  the  individual 
intended.  And  if  one  of  the  parties  uses  a  fictitious  name  he 
is  as  much  bound  as  though  he  had  used  his  own  proper  name. 
And  it  is  not  always  necessary  that  each  party  should  always 
be  fully  or  correctly  named  or  referred  to  in  each  clause  of 
the  lease.  It  is  sufficient  if  it  can  be  gathered  from  the  whole 
instrument  who  is  lessor  and  who  is  lessee  and  what  covenants 
are  intended  to  be  binding  upon  each.100 

The  question  of  whether  a  lease  which  the  law  requires  to 
be  in  writing  is  valid  if  at  the  time  of  execution  by  the  lessor 
the  name  of  the  lessee  is  left  blank  and  is  afterwards  tilled  in 
is  not  free  from  difficulty.  But  the  prevailing  doctrine  is  that 
a  deed  in  which  the  name  of  the  grantee  is  left  blank  is  void.101 

10*Newton  vs.  McKay,  29  Mich..  1. 
10'Viser  vs.  Rice.  33  Tex.,  139. 

Jackson  vs.  Titus,  2  Johns..  430. 

Edelin  vs.  Sanders,  S  Md.,  118. 

Ingram  vs.  Little,  14  Ga.,  173. 

Burns  vs.  Lynde,  6  Allen,  305. 

Simms  vs.  Hervey,  19  Iowa,  273. 


190  LANDLORD   AND   TENANT. 

But  there  is  some  authority  in  favor  of  a  contrary  doctrine,102 
and  the  weight  of  authority  is  perhaps  that  such  an  in- 
strument is  A-alid  in  the  hands  of  one  who  took  it  without 
knowledge  of  its  original  defect.103 

THE  OPERATIVE  WORDS  OF  A  LEASE. 

In  defining  a  lease  it  has  already  been  explained  what  form 
of  words  should  or  may  be  used  in  making  a  lease. 

THE  DESCRIPTION  OF  THE  PREMISES. 

A  sufficient  description  of  the  leased  premises  is  essential 
to  the  validity  of  every  lease  which  the  law  requires  to  be  in 
writing.  Being  an  essential  part  of  the  contract  it  cannot  be 
supplied  by  parol  evidence  and  without  it  a  lease  is  void.  That 
is  to  say,  the  lease  is  void  so  long  as  it  remains  purely  execu- 
tory, or  in  other  words,  so  long  as  parties  have  not  joined  in 
an  act  or  part  performance,  of  the  lease. 

As  we  have  seen  elsewhere,  leases  which  are  void  on  their 
surface  may  become  effectual  for  some  purposes,  when  pos- 
session is  taken  under  them  or  other  acts  of  part  performance 
are  done  with  the  concurrence  of  both  parties.  For  as  will  be 
more  fully  explained  hereafter,  nothing  is  an  act  of  part  per- 
formance in  a  legal  sense  unless  it  is  an  act  in  which  both 
parties  participate  or  in  which  both  parties  concur.  An  act 
to  be  an  act  of  part  performance  must  be  of  such  a  character 
as  would  work  an  estoppel. 

With  this  understanding  of  what  is  meant  by  the  saying 
that  a  lease  which  the  law  requires  to  be  in  writing  which 


102Clark  vs.  Allen,  34  Iowa.  190. 
Pence  vs.  Arbuckle,  22  Minn.,  417. 

1MField  vs.  Stagg,  52  Mo.,  534. 
Drury  vs.  Foster,  2  Wall.,  24. 


LANDLORD   AND   TENANT.  191 

does  not  contain  a  sufficient  description  of 'the  premises  is 
void,  it  remains  to  be  seen  what  is  a  sufficient  description  and 
what  is  included  within  the  description  used.  The  reader  will 
observe  that  the  phrase  ''lease  which  the  law  requires  to  be 
in  writing"  is  used  instead  of  "written  lease,"  for  in  case  of  a 
written  lease  which  the  law  does  not  require  to  be  in  writing 
it  is  competent  to  supply  deficiencies  by  parol  evidence.  In 
the  latter  case,  as  in  the  former,  the  writing  cannot  be  con- 
tradicted or  varied  by  parol,  but  in  the  latter  case  that  which 
is  lacking  may  be  supplied,  but  in  the  other  it  cannot.105 

Kecurring  now  to  the  question  of  what  is  a  sufficient  de- 
scription of  the  leased  premises,  it  can  safely  be  laid  down  that 
any  language  is  sufficient  which  will  identify  the  premises 
which  are  the  subject  of  the  lease.  There  is  no  set  form  of 
words  necessary  to  be  used  in  any  case.  Anything  from  which 
a  court  can  find  the  intent  of  the  parties  will  be  sufficient, 
and,  in  order  to  get  at  that  intent,  extrinsic  evidence  of  facts 
is  freely  admitted.  There  is  nothing  in  which  the  rules  of  law 
are  more  liberal,  less  technical,  and  more  elastic,  than  in  con- 
struing descriptions  in  deeds,  leases  and  other  writings.  With 
this,  there  are  two  things  to  be  borne  in  mind.  There  must  be 
some  description;  for  extrinsic  evidence  cannot  be  admitted 
to  supply  that  which  is  wholly  wanting.  And,  secondly,  it 
must  be  a  description  which,  upon  its  face,  appears  capable 
of  being  made  certain  and  definite  by  a  reference  to  extrinsic 
facts.106 

For,  if,  upon  its  face,  a  description  is  ambiguous,  extrinsic 
evidence  cannot  be  resorted  to,  for  the  purpose  of  showing 

10!Greenl.  Ev.,  Sec.  297,  et  seq. 

1MIt  was  held  in  Bulkley  vs.  Devine,  127  111.,  406;  3  L.  R.  A.,  330, 
that  one  who  had  executed  a  contract  for  the  leasing  of  a  house  and 
who  took  possession  under  it  and  paid  rent,  could  not  repudiate  it  on 
the  ground  that  the  contract  did  not  give  the  number  of  the  house. 


192  LANDLORD    AXD    TKXAXT. 

what  was  intended.  Or,  in  other  words,  a  description  which 
upon  its  face  describes  several  things  equally  well  describes 
nothing.  It  would  be  a  case  of  patent  ambiguity  which,  as 
Bacon  says,  "cannot  be  holpen  by  averment." 

In  written  and  printed  leases  it  is  usual,  as  in  the  form 
given,  to  add  to  the  description  of  the  property  the  words,  "its 
hereditaments  and  appurtenances."  Hereditaments  is  a  word 
of  very  extensive  signification,  and  includes  every  species  of 
real  property;  since  it  means  those  things  which  pass  by  in- 
heritance, that  is,  those  things  of  which  the  title,  on  the  death 
of  a  person,  passes  to  his  heirs;  in  contradistinction  to  those 
things  the  title  to  which  passes  to  his  personal  representatives, 
that  is,  his  executors  or  administrators. 

Keal  property  goes  to  the  heirs  and  personal  property  to 
the  personal  representatives.  But  some  articles  which,  disso- 
ciated from  their  surroundings,  would  be  personal  property.  ;is, 
for  instance,  family  pictures,  are  sometimes  hereditaments,  be- 
cause, by  a  particular  custom,  they  are  heir-looms  and  pass  to 
the  heir.  Appurtenances  mean  a  right  which  passes  as  an  inci- 
dent of  the  grant  of  something  else  as  the  principal  subject 
of  the  grant.  In  deeds  and  leases  it  is  restricted  to  rights  and 
privileges  incident  to  real  property,  as,  for  instance,  a  right  of 
way.  The  use  of  those  words  in  a  lease  is  unnecessary  verbiage 
since,  as  we  have  already  seen,107  when  land  or  a  building  or 
a  part  of  a  building  is  leased  everything  which  belongs  to, 
and  every  right  or  privilege  necessarily  incident  to  the  use  and 
beneficial  enjoyment  of  the  thing  leased,  passes  by  the  lease, 
without  being  mentioned  specifically.  The  explanation  and 
limits  of  this  doctrine  can  best  be  learned  by  a  consideration 
of  the  adjudicated  cases.108 

10*Edmisou  vs.  Lowry  (S.  D.),  17  L.  R.  A..  i>7o. 


LANDLORD   AND   TENANT.  193 

THE  TERM. 

The  period  of  time  fixed  by  the  lease  contract  for  the  dura- 
tion of  the  tenancy  is  called  the  term.  It  is  essential  to  the 
validity  of  every  lease  that  the  term  should  be  certain,  as  it  is 
an  essential  part  of  the  contract.  The  certainty  required  by 
the  law  demands,  not  only  that  the  length  of  time  for  which 
the  lease  is  to  continue  should  be  fixed,  but  also,  the  day  on 
which  it  begins,  and,  by  consequence,  the  day  on  which  it  term- 
inates. As  the  legal  day  begins  at  midnight,  the  tenant's  term 
begins  at  midnight  on  the  first  day,  and  ends  at  midnight  on 
the  last  day,  of  the  term.  Under  a  properly  drawn  lease  no 
difficulty  as  to  the  limits  of  the  term  can  arise.  But,  even 
in  the  case  of  carefully  drawn  leases,  disputes  as  to  the  term 
arise  which  must  be  settled  by  the  courts.  The  reader  will 
notice  that  in  the  form  of  lease  given  it  is  stated  that  the  term 
shall  "begin"  on  the  first  day  of  May.  If  the  language  em- 
ployed had  been  "five  years  from  the  first  day  of  May,"  a 
question  would  have  arisen  whether  the  first  day  of  May  was 
included  in  the  term,  or,  in  other  words,  whether  the  term  be- 
gan on  the  first,  or  on  the  second,  day  of  May. 

Special  attention  is  directed  to  this  point  here  in  order 
that  the  student  may  observe  what  minute  consideration  of 
the  phraseology  to  be  employed  in  drawing  contracts  is  always 
necessary  in  order  to  avoid  ambiguity  and  uncertainty. 

If  it  does  not  appear  to  be  clear,  from  the  language  used  in 
making  the  lease  contract,  what  length  of  time  the  parties 
have  agreed  upon,  the  courts  will  attempt  to  construe  the  lan- 
guage used  in  such  a  way  as  to  give  effect  to  the  agreement 
and  carry  out  the  intention  of  the  parties.  This  is  in  accord 
with  what  a  very  learned  writer  gives  as  the  first  great  rule  of 
the  law  in  construing  all  contracts.100  A  liberal  construction 
should  be  put  upon  written  instruments,  so  as  to  uphold  them, 


194  LANDLORD   AND   TENANT. 

if  possible,  and  carry  into  effect  the  intention  of  the  parties. 
In  doing  this  the  first  attempt  is  always  to  be  made  by  apply- 
ing settled  rules  of  construction  to  the  language  used,  and 
without  at  first  resorting  to  extrinsic  evidence.  Extrinsic 
evidence  is  resorted  to,  not  to  alter  the  meaning  of  a  written 
instrument,  but,  in  case  of  uncertainty,  to  shed  light  upon  the 
subject  matter  and  the  circumstances  under  which  it  was 
drawn.  Where  the  meaning  of  the  language  used  is  clear  and 
certain,  no  resort  to  extrinsic  evidence  can  be  had.  If  by  ap- 
plying settled  rules  of  construction  to  the  language  used,  cer- 
tainty can  be  reached,  the  inquiry  goes  no  further.  If  this 
effort  proves  ineffectual,  resort  will  then  be  had  to  evidence  of 
extrinsic  facts,  from  which  the  court  may  be  able  to  gather 
the  real  intent. 

The  language  used  must,  however,  be  such  as  is  capable  of 
such  an  interpretation  as  to  bind  the  parties  to  some  definite 
term.  If  it  is  not,  the  courts  will  not  attempt  to  make  a  con- 
tract where  the  parties  have  made  none  themselves.  It  is  on 
this  principle  that  it  is  held  that  a  lease  for  such  a  time  as 
the  parties  may  agree  upon,  or  to  continue  so  long  as  both 
parties  are  satisfied,  is  void  since  by  such  language  neither 
party  is  bound  for  any  period  whatever. 

RENT. 

IN  THE  LAW  OF  LANDLORD  AND  TENANT  RENT  IS  THE 
RECOMPENSE  WHICH  THE  TENANT  MAKES  TO  THE  LAND- 
LORD FOR  THE  USE  OF  THE  LAND  AND  IT  MAY  BE  IN 
MONEY,  PROPERTY,  OR  SERVICES. 

Eent  is  not  essential  to  a  lease,  and  the  obligation  to  pay 
rent  can  only  arise  out  of  an  express  or  implied  promise.  A 


109It  is  better  to  say  contracts,  for  the  rule  is  the  same  whether  the 
contract  is  written  or  verbal. 


LANDLORD   AND   TENANT.  195 

promise  to  pay  rent  will  be  implied  where  it  fairly  appears 
from  all  the  circumstances  of  the  particular  case  that  it  was 
understood  by  the  parties  that  rent  was  to  be  paid.  The  amount 
of  the  rent  to  be  paid,  when  it  has  not  been  fixed  by  agreement, 
must  be  a  reasonable  compensation  for  the  use  of  the  property. 
In  such  a  case  the  manner  and  time  of  payment 
will  be  in  accordance  with  the  local  usage  and  cus- 
tom in  paying  rent  for  the  kind  of  property  which 
is  the  subject  of  the  lease.  It  is  often  a  matter  of  extreme 
difficulty  to  determine  whether  or  not  in  a  particular  case 
there  is  an  implied  promise  to  pay  rent.  This,  however,  is  al- 
ways a  question  of  fact  and  never  a  question  of  law.  The  law 
does  not  impose  an  obligation  to  pay  rent  upon  one  merely 
because  he  occupies  the  property  of  another  with  his  consent. 
But  a  promise  to  pay  may  be  implied,  and  whether  there  was 
such  a  promise  in  any  given  case  is  a  matter  of  fact,  to  be  de- 
termined by  all  the  fa<;ts  and  circumstances  of  each  case. 

In  the  usual  form  of  lease  rent  is  mentioned  twice.  It  is 
first  mentioned  as  being  reserved  by  the  lessor.  After  this 
it  is  usual  to  insert  an  express  covenant  on  the  part  of  the 
lessee  to  pay  the  rent  reserved.  The  object  of  having  an  ex- 
press covenant  to  pay  rent  is  this:  Rent  which  is  reserved 
merely,  must  be  paid  by  whosoever  occupies  the  premises  so 
long  as  the  occupation  continues,  and  a  lease  reserving  rent,  it 
is  said,  creates  an  implied  covenant  on  the  part  of  the  lessee 
to  pay  the  rent  reserved.  But  this  implied  covenant  is  not  a 
personal  covenant,  but  one  which  runs  with  the  land,  and  may 
therefore  be  avoided  by  the  lessee  by  assigning  the  lease  to 
a  third  party,  who  may  be  irresponsible.  This  is  in  accordance 
with  the  general  rule  that  implied  covenants  in  the  lease  con- 
tract run  with  the  land,  and  are  binding  only  upon  the  land- 
lord, that  is,  so  long  only  as  he  remains  owner  of  the  land,  or 


196  LANDLORD   AND   TENANT. 

as  it  is  generally  said  of  the  reversion,  and  are  binding  only 
upon  the  tenant  so  long  as  he  actually  remains  tenant  in  pos- 
session. The  landlord  is  discharged  of  an  implied  covenant 
whenever  he  parts  with  his  reversion,  and  the  burden  there- 
after rests  upon  the  purchaser  of  the  reversion;  the  tenant  is 
discharged  of  his  implied  covenants  by  assigning  his  lease. 
But  express  covenants  in  leases  are  personal  obligations  which 
must  be  fulfilled  by  a  party  according  to  their  terms,  whether 
he  continues  to  own  or  hold  the  leased  premises  or  not.  Thus, 
it  was  held  that  an  assignment  of  the  lease  and  the  acceptance 
by  the  landlord  of  the  assignee  as  tenant  did  not  release  the 
original  tenant  from  his  covenant  to  pay  rent.111 

WHEN  RENT  IS  PAYABLE. 

Where  the  dates  of  payment  are  not  specifically  prescribed 
in  a  lease  the  rule  is  that  the  rent  is  payable  at  the  end  of 
each  rent  term  fixed  by  the  lease.  For  instance,  if  the  leased 
premises  are  rented  for  five  years  for  the  gross  sum  of  fifteen 
hundred  dollars  no  rent  is  payable  until  the  end  of  the  term. 
If  the  premises  are  rented  for  five  years  at  three  hundred  dol- 
lars per  year,  the  rent  is  payable  at  the  end  of  each  year.  If 
the  premises  are  rented  for  five  years  at  the  rate  of  seventy- 
five  dollars  per  quarter,  the  rent  is  payable  quarterly;  if  at 
the  rate  of  twenty-five  dollars  per  month,  the  rent  is  payable 
monthly.  If  the  premises  are  rented  in  the  middle  of  a  rent 
period,  the  usual  rule  is  that  a  proportional  part  of  the  rent 
for  that  period  is  payable  on  the  first  usual  and  regular  rent 
day,  but  as  to  this  the  cases  are  not  entirely  agreed.  Kent  is 
never  payable  in  advance,  or  before  the  end  of  a  rent  period, 
except  by  virtue  of  an  express  contract. 

"'Bonetti  vs.  Treat,  91  Gal.,  223;  14  L.  R.  A.,  151. 


LANDLORD    AND   TENANT.  197 

WHERE  RENT  IS  TO  BE  PAID. 

In  most  leases  rent  has  a  double  aspect.  Viewed  in  one 
light  it  is  when  due  an  ordinary  debt,  and  is  payable  like  other 
debts  without  any  previous  demand.  If  it  is  not  paid  when  due 
it  may  be  sued  for  without  a  prior  demand. 

The  common  law  requires  the  debtor  to  seek  the  creditor 
and  tender  payment  if  he  would  avoid  suit.  Viewed  in  another 
light,  the  payment  of  rent  may  be  a  condition  on  the  fulfill- 
ment of  which  depends  the  right  to  remain  in  possession  of 
the  property.  In  this  aspect  payment  need  only  be  made  on  the 
leased  premises.  To  avoid  a  forfeiture  of  the  lease  for  non- 
payment of  rent,  it  was  only  necessary,  at  the  common  law, 
that  the  tenant  should  be  ready  to  make  payment  on  the  land 
when  a  lawful  demand  was  made  upon  him  there.  And  the 
requisites  of  a  lawful  demand  were  as  follows:  The  landlord 
could  not  make  his  demand  before  the  very  day  on  which  the 
rent  was  due.  The  demand  was  ineffectual  if  it  was  for  more 
than  the  exact  sum  due.  The  demand  had  to  be  made  at  the 
most  suitable  place  on  the  leased  premises;  at  a  convenient 
time  before  sunset,  so  as  to  afford  daylight  enough  for  count- 
ing the  money.  The  landlord  must  wait  until  sunset,  and  if 
the  money  had  not  then  been  paid,  the  forfeiture  might  still 
be  saved  by  a  tender  of  the  money  at  any  time  before  midnight 
The  subject  is  now  regulated  by  statute  in  most,  if  not  all,  of 
the  States. 

It  must  not  be  assumed  from  what  has  been  said  that  non- 
payment of  rent  is  always  ground  for  forfeiture  of  the  lease. 
The  payment  of  rent  was  not  regarded  as  a  condition  at  the 
common  law  unless  it  was  expressly  made  a  condition  by  the 
terms  of  the  lease.  In  every  well  drawn  lease  it  is  now  made 
a  condition  by  the  re-entry  clause,  the  nature  and  effect 
of  which  will  be  examined  hereafter.  In  addition  to  express 


198  LANDLORD   AND   TENANT. 

provisions  in  the  lease,  the  payment  of  rent  is  now  generally 
made  a  condition  by  statutory  provisions.  But,  unless  by  an 
express  provision  of  the  lease,  or,  by  virtue  of  a  statute,  non- 
payment of  rent  is  no  more  a  ground  for  forfeiting  a  lease  than 
non-payment  of  the  purchase  price  is  for  rescinding  a  sale,  and 
revesting  title  in  the  vendor. 

TO  WHOM  RENT  IS  PAYABLE. 

Under  this  head  no  difficulty  arises  where  the  rent  is  made 
payable  to  the  lessor,  and  the  lessor  lives  and  holds  his  title 
during  the  continuance  of  the  term.  But  where  the  rent  is  re- 
served in  favor  of  a  person  other  than  the  landlord,  it  is  doubt- 
ful what,  if  any,  remedy  the  person  to  whom  the  rent  is  made 
payable  has.112  The  covenant  to  pay  rent  being  one  which 
runs  with  the  land,  the  right  to  the  rent  follows  the  reversion, 
and  this  without  regard  to  the  technical  language  used  in  the 
lease.113  Whenever  the  landlord's  title  is  extinguished,  whether 
by  death  or  sale,  the  right  to  collect  the  rent  passes  to  the  new 
proprietor,  that  is,  if  the  new  proprietor  acquires  the  title 
which  the  landlord  had  at  the  tune  of  making  the  lease.  If 
the  new  proprietor  comes  in  by  virtue  of  a  different  and  para- 
mount title,  he  acquires  no  rights  under  the  lease.  The  differ- 
ence may  be  illustrated  in  this  way:  If,  at  the  time  of  the 
leasing,  the  laud  is  subject  to  a  mortgage,  and  during  the  term 
this  mortgage  is  foreclosed,  the  purchaser  under  the  fore- 
closure acquires  no  rights  under  the  lease.  The  covenants  of 
the  lease  do  not  run  with  the  estate  which  is  the  subject  of 
the  mortgage.  But  if  the  mortgage  is  made  after  the  lease, 
then  the  purchaser  under  the  foreclosure  succeeds  to  the  rights 
of  the  landlord  under  the  lease,  for  the  leasehold  is  a  part  of 

"2Bre\ver  vs.  Dyer,  7  Gush.,  337. 

Bank  vs.  Rice.  107  Mass.,  41.    < 

113Fennell  vs.  Guffey,  139  Pa.,  341. 


LANDLORD   AND   TENANT.  199 

the  estate  which  was  mortgaged.  It  will  thus  be  seen  that 
the  phrase  "covenants  which  run  with  the  land"  may  be  mis- 
leading unless  the  student  keeps  in  mind  that  in  this  phrase 
"land"  really  means  "estate  in  land,"  and  that  the  thought  in- 
tended to  be  conveyed  would  be  more  accurately  expressed  by 
the  language  "covenants  which  run  with  an  estate  in  the  land 
in  which  they  arise." 

And,  as  it  is  said,  "rent  is  not  apportionable  in  respect  of 
time,"  the  new  proprietor  takes  the  rent  not  only  from  the  day 
on  which  the  title  devolves  upon  him,  but  from  the  last  pre- 
ceding rent  day.  Thus,  if  the  landlord  dies  in  the  middle  of  the 
year,  where  rent  is  payable  annually  or  even  on  the  very  last 
day  of  the  term  before  the  rent  is  due,  the  heir  takes  the  whole 
year's  rent.  Whereas,  if  the  landlord  had  died  the  day  after 
the  year's  rent  was  due,  the  right  to  collect  the  rent  would 
pass  to  his  executor  or  administrator.  The  same  rule  obtains 
when  the  title  passes  by  gift  or  grant,  whether  voluntary  or 
involuntary.  Kent  which  is  past  due  is  personal  property,  and 
does  not  pass  with  the  land.  Rent  which  is  not  yet  due  belongs 
to  the  land,  and  passes  with  the  land  to  whosoever  acquires 
the  title.  Eent  which  is  overdue  is  like  ripe  fruit  which  has 
fallen  to  the  ground  or  a  tree  which  has  been  cut  down.  It 
has  become  a  chattel  and  is  no  longer  part  of  the  land.  Eent 
which  is  not  yet  due  is  like  fruit  on  the  tree  or  a  growing  tree. 
It  is  part  of  the  soil  and  passes  with  it.  Whether  in  view  of 
this  quality  of  rent,  rent  to  accrue  in  the  future  is  subject  to 
attachment  or  garnishment,  is  a  question  which  does  not  seem 
to  have  arisen,  but  in  the  opinion  of  the  authors  it  is  not  unless 
specifically  named  in  the  statute. 

There  is  one  exception  to  the  rule  that  rent  is  not  appor- 
tionable in  respect  of  time.  Where  a  tenant  for  life  makes  a 
lease  for  years  and  dies  in  the  middle  of  a  year,  his  personal 


200  LANDLORD   AND   TENANT. 

representatives  are  entitled  to  the  rent  computed  up  to  the  day 
of  his  death.  The  reversioner  or  remainderman  is  entitled  to 
the  rent  thereafter. 

Although  rent  is  not  apportionable  in  point  of  time,  there 
are  many  cases  in  which  it  is  apportioned  between  separate 
owners  on  account  of  a  change  in  the  ownership  after  the 
making  of  the  lease.  When,  after  the  making  of  a  lease,  the 
title  to  different  parcels  of  the  land  devolves  upon  different 
persons,  the  rent  must  be  apportioned  according  to  the  rental 
value  of  each  parcel  and  be  paid  to  the  respective  owners.  To 
make  this  apportionment,  a  bill  of  interpleader  would  lie  at  the 
suit  of  the  tenant. 

So  where  a  portion  of  the  leased  premises  is  condemned  for 
public  uses,  the  rent  is  abated  in  proportion  to  the  damage  to 
the  rental  value  of  the  property.115  If  the  whole  of  the  leased 
premises  is  condemned  this  puts  an  end  to  the  lease  and  no 


116The  decision  of  the  Supreme  Court  of  Illinois  in  Stubbings  vs. 
Bvanston,  136  111.,  37,  is  not  in  accordance  with  the  weight  of  author- 
ity, nor  is  it  reasonable.  It  cannot  be  commended  as  a  precedent 
when  it  is  tested  by  Blackstone's  famous  aphorism,  that  "what  is  not 
reason  is  not  law,"  a  saying  too  often  forgotten  by  courts  and  lawyers. 
In  that  case  it  is  held  that  when  only  a  portion  of  leased  premises  is 
condemned,  the  liability  of  the  tenant  to  pay  the  full  rent  reserved  in 
the  lease  during  the  whole  term  remains  unimpaired,  and  therefore 
compensation  for  the  damage  to  the  rental  value  of  the  premises  during 
the  term  must  be  made  to  the  tenant  and  not  to  the  landlord.  Suppose 
a  case  where  the  rental  value  of  the  entire  premises  is  a  thousand 
dollars  a  year  and  the  lease  has  twenty  years  to  run,  and  through  the 
condemnation  proceedings  the  rental  value  of  what  is  left  is  reduced 
to  one  hundred  dollars  a  year.  Under  the  decision  in  the  case  under 
consideration,  the  tenant  must  pay  nine  hundred  dollars  a  year  for 
twenty  years  for  nothing,  because  what  he  was  to  get  for  it  is  ap- 
propriated by  the  public.  He  must  be  compensated  for  this  liability 
and  a  sufficient  sum  must  be  awarded  to  him  (in  addition  to  his  other 
damages)  to  pay  this  nine  hundred  dollars  a  year  for  twenty  years 
to  his  landlord.  As  this  money  is  awarded  to  him  solely  for  the  pur- 
pose of  having  him  pay  it  over  to  the  landlord,  why  not  award  and 
pay  it  over  to  the  landlord  in  the  first  place  and  relieve  the  tenant  from 
liability  and  the  landlord  from  anxiety?  Why  make  the  tenant  prac- 
tically a  trustee  for  the  landlord,  without  bonds,  in  what  is  purely  a 
naked  trust?  Why  pursue  this  circuitous  method  of  getting  money  to 


LANDLORD   AND   TENANT.  201 

rent  is  payable  thereafter.  The  landlord  must  look  to  the 
public  for  a  just  compensation  for  his  loss  in  either  case. 

INSTEAD  OF  PAYING  RENT,  A  TENANT  MAY  ALWAYS 
PAY  ANY  CHARGE  AGAINST  THE  LAND,  AGAINST  WHICH 
IT  IS  HIS  LANDLORD'S  DUTY  TO  PROTECT  HIM,  AND  THE 
NON-PAYMENT  OF  WHICH  EXPOSES  HIM  TO  STJJ.T,  EVIC- 
TION, OR  DISTRESS. 

This  rule,  as  we  have  already  seen,  grows  out  of  that  doc- 
trine of  the  law  of  landlord  and  tenant  that  where  either  party 
to  the  lease  fails  in  the  performance  of  a  duty  of  protection, 
the  other  is  authorized  to  perform  it,  for  his  own  protection, 
at  the  expense  of  the  one  in  default.  And  the  tenant  need  not 
wait  to  discharge  the  burden  until  he  is  actually  threatened 
with  distress,  or  eviction.  He  may  act  so  soon  as  the  de- 
fault of  the  landlord  has  exposed  him  to  a  liability.  And,  in 
relieving  himself  from  such  a  liability,  he  is  not  limited  to 
paying  simply  the  amount  of  rent  which  he  owes.  He  may,  if 
he  chooses,  pay  whatever  amount  is  necessary,  and,  if  the 

the  landlord  which  by  a  curious  method  of  reasoning  is  awarded  to 
the  tenant  because  it  belongs  to  the  landlord  and  because  the  tenant 
must  pay  it  to  him? 

But  there  is  another  view  which  illustrates  more  clearly  the  glar- 
ing injustice  of  the  proceeding.  The  landlord's  right  to  the  rent  is,  it 
is  true,  a  contractual  right  against  the  tenant,  but  it  must  be  remem- 
bered that  so  long  as  the  property  is  uncondemned  he  has  security  for 
his  money.  If  the  tenant  does  not  pay  he  forfeits  his  lease  and  the 
property  reverts  to  the  landlord.  Thus  the  actual  rental  value  of  the 
property  is  security  to  the  landlord  that  the  rent  will  be  paid,  for  the 
tenant  cannot  continue  to  hold  the  possession  unless  he  pays  the  rent. 
But  the  moment  the  rental  value  of  the  premises  is  destroyed,  that 
moment  the  landlord's  security  is  gone.  In  this  aspect  the  landlord's 
situation  is  analogous  to  that  of  a  mortgagee.  In  condemnation  pro- 
ceedings mortgagees  always  are  made  parties  and  the  rule  is  to  award 
to  the  mortgagee  as  damages  that  part  of  his  money  for  which  the 
property  left  is  not  ample  security,  and  this  is  done  whether  the  mort- 
gage loan  is  due  or  not.  What  the  mortgagee  receives  in  this  way  is 
treated  as  a  payment  on  account  by  the  mortgagor.  There  is  no  sound 
reason  why  the  same  principle  should  not  be  applied  in  the  case  of 
landlord  and  tenant.  To  compel  a  creditor  to  accept  a  merely  personal 
liability  for  a  secured  claim  is  confiscation. 


202  LANDLORD   AND  TENANT. 

amount  exceeds  the  rent  which  he  owes,  he  can  recover  the 
excess  in  an  action  for  money  paid  to  the  landlord's  use. 

THE  GROUNDS  ON  WHICH  PAYMENT  OF  RENT  MAY  BE 
REFUSED. 

We  have  before  adverted  to  the  dual  aspect  in  which  rent 
is  to  be  regarded.  Where  rent  is  reserved,  payable  in  install- 
ments, at  stated  intervals,  the  payment  of  the  rent  is  now 
almost  universally  a  condition,  on  the  performance  of  which 
the  lessee  continues  to  hold,  and  for  the  non-performance  of 
which  his  estate  is  liable  to  forfeiture.  There  is  but  one  case 
in  which  a  tenant,  whose  estate  is  liable  to  forfeiture  for  non- 
payment of  rent,  can  resist  forfeiture  and  dispossession  for 
non-payment.  When  there  has  been  a  willful  and  actual  (as 
distinguished  from  constructive)  eviction  by  the  personal  act 
of  the  landlord,  from  the  whole,  or  a  part,  of  the  leased  prem- 
ises, rent  ceases.  The  obligation  to  pay  rent  is  suspended  so 
long  as  the  eviction  continues.  The  tenant  may,  if  he  chooses, 
treat  it  as  putting  a  final  termination  to  the  lease  contract. 
He  may,  i£  he  chooses,  stand  upon  his  rights  under  the  lease 
and  refuse  to  pay  rent  while  the  eviction  continues,  and  in 
such  case,  if  the  eviction  is  but  from  a  part  of  the  leased 
premises,  the  tenant  is  not  obliged  to  surrender  possession  of 
the  remaining  portion  in  order  to  avoid  liability  for  rent.  Upon 
eviction  from  a  part,  that  is,  if  the  eviction  is  of  the  character 
above  defined,  the  whole  rent  is  suspended,  although  the  ten- 
ant remains  in  possession  of  a  portion  of  the  leased  premises. 
The  suspension  of  the  rent,  in  a  case  of  this  kind,  is  in  the 
nature  of  a  penalty,  for  the  wrongful  act  of  the  landlord,  in 
violating  that  duty  of  loyalty  and  protection  which  he  owes 
to  the  tenant's  possession.  But,  as  the  suspension  of  the  whole 
rent  in  case  of  a  wilful  partial  eviction  is  a  penalty  for  wrong- 
ful conduct,  rent  is  not  wholly  suspended  on  account  of  a  par- 


LANDLORD   AND   TENANT. 

tial  eviction  due  to  other  causes.  Where  there  is  a  partial 
eviction  by  virtue  of  a  title  paramount  to  the  landlord's,  rent 
is  abated  in  proportion  to  the  rental  value  of  that  portion  from 
which  the  tenant  has  been  evicted,  just,  indeed,  as  in  the  case 
of  the  condemnation  of  a  portion  of  the  leased  premises  for 
public  purposes.  In  the  case  of  a  partial  eviction,  not  the 
result  of  the  personal  wrongful  act  of  the  landlord,  the  tenant 
cannot  remain  in  possession  of  the  remainder  and  refuse  to 
pay  rent.  He  must  pay  rent  or  move  out,1 16  but,  he  may,  if  the 
eviction  is  of  a  substantial  portion  of  the  leased  premises, 
throw  up  his  lease  and  seek  his  remedy  against  the  landlord 
on  the  covenant  for  quiet  enjoyment. 

In  case  of  a  constructive  eviction,  the  tenant  must  choose 
between  paying  rent  and  abandoning  the  premises.  He  cannot 
remain  in  possession  without  paying  rent.117  This  is  also  the 
case  where  the  tenant  grounds  his  refusal  to  payment  upon  the 
breach  of  any  other  of  the  landlord's  covenants,  as,  for  in- 
stance, a  covenant  to  repair.  Except  in  the  single  case,  which 
has  been  explained,  the  tenant  cannot  resist  dispossession  and 
the  payment  of  any  money  which  should  have  been  paid  by  the 
landlord  and  the  non-payment  of  which  exposes  the  tenant  to 
suit,  distress  or  forfeiture,  will  be  regarded  as  a  payment  on  the 
rent.  What  constitutes  an  eviction  is  explained  under  the  sec- 
tion devoted  to  the  covenant  for  quiet  enjoyment,  which  is 
neither  more  nor  less  than  a  covenant  against  eviction. 

In  another  aspect  rent  is  simply  so  much  money  due  by 
virtue  of  a  contract.  When  it  is  sued  for  like  money  due  upon 
any  other  contract,  it  is  subject  to  set-off,  and  recoupment,  and 
payment  may  be  resisted  on  grounds  which  would  defeat  a  re- 

"'Leiferman  vs.  Osten,  167  111.,  93;  39  L.  R.  A.,  156. 
mKeating  vs.  Springer,  146  111.,  481;  22  L.  R.  A.,  544. 


204  LANDLORD   AND   TENANT. 

covery  upon  other  contracts.  These  defenses  are  ranged  under 
four  heads;  set-off  where  the  tenant  has  a  liquidated  de- 
mand against  the  landlord  growing  out  of  some  other  matter; 
recoupment  where  the  tenant  has  a  counter-claim  against  the 
landlord  for  the  landlord's  breach  of  some  obligation  growing 
cut  of  the  lease;  repudiation  of  the  lease  by  the  tenant  upon 
the  ground  of  fraud;  and  lastly,  where  there  is  a  total  fail- 
ure of  the  consideration  for  the  promise  to  pay  rent. 

LEASES,  LIKE  ALL  OTHER  CONTRACTS,  MAY  BE  AVOIDED 
FOR  FRAUD. 

It  is  an  ancient  doctrine  of  the  law  that  fraud  vitiates  all 
contracts,  by  which  is  intended,  not  that  it  renders  them 
void,  but,  that  it  renders  them  voidable,  at  the  option  of 
the  defrauded  party.  The  right  to  avoid  a  contract  for  fraud 
must  be  exercised  promptly,  if  at  all;  that  is,  as  soon  as  it  can 
reasonably  be  done  after  the  discovery  of  the  fraud.  It  must 
also  be  avoided  in  whole,  or  not  at  all.  The  law  does  not  per- 
mit the  defrauded  party  to  avoid  a  contract  in  part,  and  affirm 
it  in  part;  and  finally,  a  party  avoiding  a  contract  for  fraud 
must  return  what  he  has  received  under  it,  and  otherwise,  so 
far  as  possible,  place  the  other  party  in  the  situation  he  was 
before  the  contract  was  entered  into.  When  this  has  been  done 
the  defrauded  party,  if  he  has  been  injured,  has  no  longer  any 
claim  under  the  contract,  but  he  may  still  have  his  action  for 
the  fraud  by  W'hich  he  was  induced  to  enter  into  the  contract. 
By  founding  a  claim  for  damages  upon  the  contract  itself  the 
injured  party  elects  to  affirm,  instead  of  avoiding,  it.  These 
are  familiar  and  elementary  principles,  and  we  are  now  to  see 
in  what  manner  they  are  applied  to  leases. 

ANY  MATERIAL  MISREPRESENTATION  ON  THE  PART 
OF  THE  LANDLORD,  WHETHER  MADE  BY  HIMSELF  OR  HIS 
AGENT,  IS  A  FRAUD  FOR  WHICH  THE  LEASE  IS  VOIDABLE 
AT  THE  OPTION  OF  THE  TENANT. 


LANDLORD   AND   TENANT.  205 

The  misrepresentation  must  be  as  to  a  fact,  for  a  mere  ex- 
pression of  opinion  is  not  regarded  as  a  statement  of  fact.  The 
common  law  maxim,  "simplex  commendatio  non  obligat,"  ap- 
plies to  leases  as  to  other  contracts.  The  misrepresentation 
must  also  be  material,  by  which  is  intended,  it  must  be  as  to 
some  matter  which  would  be  an  inducement  to  enter  into  the 
contract,  and  the  falsity  of  which  materially  alters  the  situa- 
tion, to  the  injury  of  the  defrauded  party.  In  cases  of  active 
fraud,  that  is,  where  there  are  positive  misrepresentations 
which  deceive,  there  is  usually  little  difficulty  in  determining 
whether  they  do,  or  do  not,  amount  to  legal  fraud.  The  chief 
difficulties  with  which  the  courts  have  had  to  contend  have 
arisen  out  of  cases  where  there  has  been  a  concealment  of 
material  defects  which,  upon  the  part  of  the  tenant,  it  has  been 
contended,  it  was  the  duty  of  the  landlord  to  disclose. 

CONCEALMENT  OF  A  HIDDEN  DEFECT  WHICH  RENDERS 
THE  LEASED  PREMISES  DANGEROUS  TO  HEALTH  OR 
TOTALLY  UNFIT  FOR  THE  PURPOSES  FOR  WHICH  THEY  ARE 
LEASED,  IS  A  FRAUD  FOR  WHICH  THE  LEASE  MAY  BE 
AVOIDED  AT  THE  OPTION  OF  THE  TENANT. 

The  English  common  law  has  always  been  considered  by 
students  of  other  systems  of  jurisprudence  peculiarly  harsh  in 
its  doctrines  as  to  contracts.  Its  rules  seem  to  have  been 
formed  upon  the  theory  that  when  two  persons,  competent  to 
contract,  came  together  to  make  a  bargain  each  must  look  out 
for  himself  and  either  might  overreach  the  other  to  almost 
any  extent.  The  favorite  maxim  of  the  common  lawyers  with 
regard  to  contracts  was  "caveat  emptor."  This  harshness  of 
the  common  law  gave  rise  to  one  of  the  heads  of  equity  juris- 
prudence, that  of  relief  against  unconscionable  contracts, 
which  the  common  law  would  have  enforced.  There 
is  a  growing  tendency  on  the  part  of  courts  and 
legislatures  to  modify  this  harshness  and  to  introduce  the 


206  LANDI0RD   AND    TENANT. 

more  equitable  principles  of  the  civil  law.  This  tendency  has 
been  greatly  stimulated  by  those  modern  codes  which  have 
broken  down  the  middle  wall  of  partition  between  law  and 
equity,  and  required  them  to  be  administered  as  one,  instead 
of  two  systems.  It  is  worthy  of  note  that  the  greatest  of 
American  law  writers  many  years  ago,  in  advance  of  his  age, 
and,  it  may  truly  be  said,  in  advance  of  the  then  state  of  the 
law,  stated  what  may  now  be  accepted  as  a  correct  statement 
of  the  law,  so  far  at  least  as  the  duty  of  the  landlord  is  con- 
cerned in  disclosing  hidden  defects  in  the  property  which  he 
is  about  to  lease.  "If  there  be  an  intentional  concealment  or 
suppression  of  material  facts  in  the  making  of  a  contract,  in 
cases  in  which  both  parties  have  not  equal  access  to  the  means 
of  information,  it  will  be  deemed  unfair  dealing  and  will  vitiate 
and  avoid  the  contract.  There  may  be  some  difference  in  the 
facility  with  which  the  rule  applies  between  the  facts  and 
circumstances  that  are  intrinsic,  and  form  material  ingre- 
dients of  the  contract,  and  those  that  are  extrinsic,  and  form 
no  component  part  of  it,  though  they  create  inducements  to 
enter  into  the  contract,  or  affect  the  price  of  the  article.  As 
a  general  rule  each  party  is  bound  to  communicate  to  the 
other  his  knowledge  of  material  facts,  provided  he  knows  the 
other  to  be  ignorant  of  them,  and  they  be  not  open  and  naked, 
or  equally  within  the  reach  of  his  observation."118 

What  is  legally  a  fraudulent  concealment,  it  is  difficult  to 
say,  or,  perhaps,  it  would  be  more  exact  to  say,  it  is  difficult 
to  say,  what,  by  any  given  tribunal,  would  be  held  to  be  a 
fraudulent  concealment.  There  is  this,  however,  to  be  said. 
The  harsh  doctrines  of  the  common  law  upon  this  subject  are 
gradually  giving  way  to  the  more  just  and  equitable  doctrines 
of  the  civil  law.  The  leading  maxim  of  the  common  law  was 

""2  Kent  Com.,  482. 


LANDLORD   AND   TENANT.  207 

and  largely  still  is,  "caveat  emptor,"  which,  in  the  light  of 
the  cases  decided  upon  its  authority,  may  be  interpreted  to 
mean,  "the  buyer  must  look  out  for  himself.  The  seller  owes 
him  no  duty."  The  maxim  of  the  civil  law  is,  "suppressio  veri, 
expressio  falsi,"  "the  suppression  of  the  truth  is  equivalent  to 
the  statement  of  what  is  false."  Although  this  maxim  has 
been  cited  in  some  cases  it  cannot  as  yet  be  considered  a  prin- 
ciple of  our  law.  The  civil  law  has  too  long  been  neglected  by 
common  law  lawyers  and  judges,  but  there  are  evidences  on 
every  hand  that  it  is  being  resorted  to  now,  and  that  the  com- 
mon law  will  be  more  and  more  modified  and  enriched,  by  that 
code,  which  was,  and  is  the  ripest  product  of  that  elder  civili- 
zation which  preceded  the  period  which  is  known  in  our  history 
as  the  Dark  Ages.  In  those  ages  the  learning  of  the  pre-exist- 
ing civilization,  so  far  as  jurisprudence  is  concerned,  was  in 
England  largely  lost  to  view  and  a  new  system  grew  up  there 
which  we  call  the  common  law.  Like  all  systems  of  law,  it  was 
greatly  affected  by  the  inherent  character  and  particular  cir- 
cumstances, surroundings,  and  history  of  the  people  among 
whom  it  developed.  This  system  is  still  dominant  among  all 
English-speaking  peoples.  But  as  we  approach  the  dawn  of  the 
twentieth  century,  and  especially  in  America,  in  a  civilization 
where  all  the  Indo-Germanic  races  are  represented,  it  is  time 
that  our  jurists  extended  their  studies  and  sought  for  sound 
legal  truth  beyond  the  narrow  confines  of  the  English  common 
law.  This  digression  may  be  pardoned  because  a  suppression 
of  the  truth  which,  by  the  principles  of  the  civil  law,  would 
be  classed  as  legal  fraud,  is  still  sanctioned  by  the  common 
law.  But,  as  said,  upon  this  point  the  principles  of  the  civil 
law  are  constantly  advancing,  and,  therefore,  it  behooves  the 
thoughtful  student  to  be  prepared  for  and  to  assist  in  this 
improvement  of  our  existing  code.  It  is  partly  because  of  this 


208  LANDLORD   AND   TENANT. 

growing  tendency  that  it  is  difficult  to  say  what,  by  any  given 
tribunal,  would  now  be  held  to  be  a  fraudulent  concealment. 
As  it  is,  the  authors  can  only  illustrate  by  the  latest  decisions 
the  existing  state  of  the  law  upon  this  subject,  indicating  at 
the  same  time  their  opinion  as  to  the  direction  in  which  the 
law  is  tending. 

In  the  existing  state  of  the  law,  a  landlord  is  not  required 
to  point  out  defects,  although  they  are  known  to  him  and  not 
known  to,  or  perceived  by,  the  tenant,  if  they  are  defects 
which  are  discoverable.  "The  tenant  is  a  purchaser  of  an 
estate  in  the  land  or  building  hired,"119  and  as  a  purchaser 
must  examine  for  himself.  But  the  case  from  which  the  lan- 
guage is  quoted  was  one  in  which  there  was  no  evidence,  that 
the  landlord  had  any  reason  to  believe  that  the  defect  com- 
plained of  was  material  or  serious,  or,  that  he  concealed  the 
defect  intentionally.  And  the  case  in  which  it  is  cited  by  the 
Supreme  Court  of  the  United  States,120  is  also  a  case,  where 
there  was  no  evidence  of  an  intentional  concealment  of  a  de- 
fect, with  any  fraudulent  purpose.  So  it  was  held  that  the  duty 
to  disclose  to  a  tenant  hidden  defects  that  tend  to  make  the 
property  unsafe  is  not  imposed  on  a  landlord  who  is  ignorant 
thereof  without  fault  or  negligence  on  his  part.121 

These  decisions  must  be  considered  as  limited  by  the  facts 
upon  which  they  are  based.  Therefore,  these  cases  are  entirely 
consistent  with  this  proposition. 

AN  INTENTIONAL  CONCEALMENT  OF  AN  UNDISCOVER- 
ABLE  MATERIAL  DEFECT  IN  THE  LEASED  PREMISES  IS  A 
LEGAL  FRAUD,  FOR  WHICH  THE  LEASE  MAY  BE  AVOIDED; 
IF  THE  DEFECT  IS  ONE  WHICH  CAUSES  INJURY  OR  DISEASE. 

"'Bowe  vs.  Hunking,  135  Mass.,  380. 

120Doyle  vs.  Union  Pacific  R'wy  Co.,  147  U.  S.,  413. 

'"Schmalzried  vs.  White,  97  Tenn.,  36;  32  L.  R.  A.,  782. 


LANDLORD  AND  TENANT.  209 

TO  THE  TENANT,   OR  HIS  FAMILY,  THE  LANDLORD  IS  LIA- 
BLE IN  DAMAGES  FOR  SUCH  CONCEALMENT.122 

A  TENANT  IS  JUSTIFIED  IN  ABANDONING  THE  PREM- 
ISES AND  REFUSING  TO  PAY  RENT,  WHEN  HE  WAS  INDUCED 
TO  TAKE  THE  LEASE  BY  FRAUD. 

If  the  landlord  or  his  agent  deceives  the  tenant  as  to  the 
condition  or  situation  of  the  premises,  the  tenant  is  not  bound 
by  his  contract.  The  lease  may  be  in  writing,  and  the  false 
statements  verbal,  but  this  makes  no  difference.  The  false 
statements  may  have  been  made  knowingly,  or  innocently,  be- 
lieving them  to  be  true,  but  the  result  is  the  same.  Mere  con- 
cealment does  not  amount  to  fraud,  except  when  there  is  some 
concealed  defect  which  renders  the  occupation  of  the  premises 
dangerous  to  life  and  health.  Thus,  it  was  held  that  a  landlord 
was  liable  to  his  tenant  for  damages  which  resulted  from  the 
dangerous  condition  of  the  premises  leased  when  he  knew  of 
the  condition  of  the  premises  at  the  time  of  the  lease,  and  when 
the  tenant  did  not  have  knowledge  of  such,  dangerous  condi- 
tion.124 

But  any  false  statements  respecting  any  matters  which  are 
important  to  the  value  of  the  use  of  the  premises,  which  were 
made  before  the  lease  was  accepted,  for  the  purpose  of  secur- 
ing a  tenant,  if  fraudulent,  will  justify  a  tenant  in  throw- 
ing up  his  lease.  But  if  the  tenant  desires  to  avoid  his 
lease  on  the  ground  of  fraud,  he  must  act  promptly  after  he 
discovers  the  fraud.  He  ought  to  abandon  the  premises 
within  a  reasonable  time.  This  statement  of  the  law  is  to  be 
taken  with  the  qualification  that  it  applies  to  the  state  of  facts 
existing  at  the  time  the  lease  is  made.  After  a  tenancy  has 
begun  the  landlord  owes  no  greater  duty  to  a  tenant  to  dis- 

122Cutter  vs.  Hamlen,  147  Mass.,  471;  1  L.  R.  A.,  429;  Ingalls  vs. 
Hobbs,  156  Mass.,  348;  16  L.  R.  A.,  51. 

Kern  vs.  Myll.  80  Mich.,  525;  8  L.  R.  A.,  682. 
124Hines  vs.  Willcox,  96  Tenn.,  148,  328;  34  L.  R.  A.,  824. 


210  LANDLORD  AND  TENANT. 

close  defects  which  are  afterwards  discovered  than  a  third 
person,  at  least  this  is  so  if  it  is  an  ordinary  defect  and  not  one 
arising  out  of  extraordinary  state  of  facts.123 

PAYMENT  OF  BENT  MAY  BE  BEFTTSED  WHEN  THEBE  IS 
A  TOTAL  FAILTJBE  OF  CONSIDEBATION.12' 

Under  this  principle  it  is  held  that,  where  a  portion  of  a 
building  is  leased  and  the  building  is  destroyed,  by  fire,  acci- 
dent, or  tempest,  rent  ceases  and  the  lease  is  at  an  end.  The 
subject  matter  of  the  contract  being  destroyed,  the  contract 
perishes  with  it.  The  rule  is  the  same,  when  the  whole  of  the 
leased  premises  are  condemned  for  public  purposes.125  So, 
also,  if  the  tenant  is  evicted  from  the  whole  of  the  premises 
by  title  paramount.  So,  also,  if  for  any  reason  the  lease  be- 
tween the  parties  is  void,  if  the  tenant  has  not  taken  possession 
under  it.  And  there  is  much  authority  for  the  proposition 
that  where,  by  reason  of  the  landlord's  failure  to  make  stipu- 
lated repairs,  the  premises  are  entirely  useless  for  the  purpose 
for  which  they  were  rented,  the  tenant  may  abandon  the  prem- 
ises and  refuse  to  pay  rent.126  In  such  a  case  there  is,  the 
courts  say,  a  total  failure  of  consideration.  But  this  right  to 
abandon,  even  where  the  neglect  to  make  stipulated  repairs 
has  rendered  the  premises  totally  useless,  has  not  been  uni- 
versally upheld,  and  it  never  exists  except  when  there  is  a 

"'Ward  vs.  Fagin,  101  Mo.,  669;  10  L.  R.  A.,  147. 
Kline  vs.  McLain,  33  W.  Va.,  32;  5  L.  R.  A.,  400. 
Bertie  vs.  Flagg,  37  N.  E.  Rep.  (Mass.),  572. 

And  it  has  been  held  that  where,  from  inherent  defects  in  the  con- 
struction, undiscoverable  at  the  time  of  the  making  of  the  lease,  the 
dwelling  was  uninhabitable  in  winter,  the  tenant  was  justified  in  re- 
scinding the  lease.    Leonard  vs.  Armstrong,  73  Mich.,  577. 
"'Wait  vs.  O'Neil,  76  Fed.  Rep.,  408;  34  L.  R.  A.,  550. 
"'Corrigan  vs.  Chicago,  144  111.,  537;  21  L.  R.  A.,  212. 
"'It  was  held  that  a  tenant,  on  the  total  destruction  of  the  leased 
building,  might  recover  back  rent  paid  in  advance.    Porter  vs.  Tull,  6 
Wash.,  408;  22  L.  R.  A.,  613.     But  the  reader  will  observe  that  this 
rule  applies  when  the  tenant  rents  only  a  portion  of  a  building.    Where 
the  land  itself  is  rented,  the  rules  hereafter  to  be  stated  are  in  force. 


LANDLORD  AND  TENANT.  211 

total  failure  of  consideration.  By  what  has  been  said,  the 
reader  will  be  prepared  for  the  doctrine  that  a  partial  failure 
of  the  consideration  is  no  ground  for  abandoning  the  premises 
and  refusing  to  pay  rent.127 

BENT  DUE  UNDER  AN  EXPRESS  COVENANT  IS  PAYABLE 
NOTWITHSTANDING  THE  BUILDINGS  ON  THE  LEASED  PREM- 
ISES ARE  DESTROYED  BY  FIRE,  OR  THE  ACT  OF  THE  PUBLIC 

ENEMY. 

If  a  building  on  the  leased  land  is  destroyed,  or  rendered 
untenantable,  by  fire,  tempest,  or  flood,  the  tenant  must  still 
continue  to  pay  rent  for  the  stipulated  period.  The  landlord 
is  under  no  obligation  to  rebuild,  nor  does  the  rent  cease,  even 
though  the  landlord  has  received  insurance.  This  is  the  rule 
of  the  common  law,  which  still  prevails  in  most  of  the 
States.  In  New  York,  Missouri,  and  Minnesota,128  statutes  have 
changed  the  law  on  this  subject,  and  in  Louisiana  and  Cali- 
fornia the  more  equitable  principles  of  the  civil  law  have  al- 
ways prevailed.  In  States  where  the  common  law  on  this  point 
is  admitted  to  prevail,  courts  have  struggled  against  it,  by 
looking  for  grounds  on  which  its  operation  might  be  evaded. 
Such  cases  are  sometimes  accounted  for  by  a  common  saying 
among  lawyers  that  "hard  cases  make  bad  law."  But  in  con- 
sidering such  cases  it  is  to  be  remembered  that  there  were 
maxims  of  the  common  law  which  commended  the  judge  who 
sought  out  "ingenious  reasons  for  maintaining  the  right  and 
subverting  the  wrong."  Lord  Hobart's  saying,  which  has  been 
often  quoted  with  approval,  was:  "I  do  exceedingly  commend 
the  judges,  that  are  curious  and  almost  subtle to  in- 
vent reasons  and  means  to  make  acts  according  to  the  just 
intent  of  the  parties,  and  to  avoid  wrong  and  injury  which  by 

127Stubbings  vs.  Evanston,  136  111.,  37;  11  L.  R.  A.,  839. 
""Taylor  vs.  Hart,  73  Miss.,  22;  30  L.  R.  A.,  716.. 


212  LANDLORD  (AND  TENANT. 

rigid  rules  might  be  brought  out  of  the  act."129  An  example 
of  the  cases  referred  to  may  be  found  in  Chesebrough  vs.  Pin- 
gree,  72  Mich.,  438;  1  L.  R.  A.,  529. 

A  critical  study  of  that  case  is  interesting  to  the  student 
as  a  practical  illustration  of  the  tendencies  which  have  been 
adverted  to.  The  case  cannot  be  commended  as  an  authority. 

A  BREACH  OF  A  LANDLORD'S  COVENANT  TO  REPAIR,  OR 
BREACH  OF  OTHER  COVENANT,  NOT  WORKING  A  TOTAL 
FAILURE  OF  CONSIDERATION,  WILL  NOT  ENTITLE  THE  TEN- 
ANT TO  ABANDON  THE  PREMISES  AND  REFUSE  TO  PAY 
RENT.130 

This  is  the  ordinary  rule.  The  only  covenant  on  the  part 
of  the  landlord,  which,  except  by  express  agreement,  is  re- 
garded as  a  condition,  for  a  breach  of  which  a  tenant  may 
declare  the  lease  forfeited  and  refuse  to  pay  rent,  is  the  cove- 
nant for  quiet  enjoyment.  When  and  how  important  a  breach 
of  that  covenant  will  justify  a  rescission  of  the  contract,  will 
be  seen  when  we  come  to  examine  that  covenant. 

The  rule  under  consideration  is  in  accordance  with  the 
general  analogies  of  the  law.  While  a  contract  remains  exe- 
cutory either  side  may  refuse  to  go  on  if  the  other  tenders 
something  inferior  to,  or  different  from,  what  the  contract  calls 
for.  But  after  the  contract  is  executed,  that  is,  after  the 
parties  have  entered  upon  its  performance,  and  a  party  has 
taken  possession  and  accepted  of  that,  or  a  part  of  thai, 
which  he  was  to  receive  under  the  contract,  he  cannot,  in 
general,  rescind  the  contract  for  a  breach  of  its  covenants.  His 
remedy  for  such  breaches  is  an  action  for  damages  on  the  con- 
tract. Applying  this  general  principle  to  the  matter  now 
under  consideration  it  follows,  that  where  the  contract  calls 
for  the  landlord  to  make  certain  repairs  before  the  tenant 

'"Squire  vs.  Ford,  9  Hare,  57. 

11>0See  Hanaw  vs.  Bailey,  83  Mich.,  24;  9  L.  R.  A.,  801. 


LA,NDIX)R>D  AND  TENANT.  213 

takes  possession,  if  they  are  not  made  the  tenant  may  decline 
to  take  possession.  But  if  he  takes  possession  without  their 
having  been  made,  relying  upon  a  promise  that  they  will  be 
made,  and  this  promise  is  not  fulfilled,  he  cannot  then  rescind 
the  contract  and  abandon  the  premises  on  account  of  the  de- 
fault. If  there  were  in  every  lease  a  clause  for  the  benefit  of 
the  tenant,  corresponding  to  the  forfeiture  and  re-entry  clause, 
which  is  inserted  in  leases  for  the  benefit  of  landlords,  the 
result  would  be  otherwise.  Such  a  clause  should  be  inserted 
in  every  equitably  drawn  lease.  It  might  properly  be  called 
the  surrender  clause,  and  follow  the  covenant  to  pay  reni, 
as  the  re-entry  clause  follows  the  covenant  for  quiet  en- 
joyment, and  might  read  as  follows:  "Provided,  however, 
that  if  default  shall  be  made  in  the  keeping  or  perform- 
ance of  any  of  the  covenants  or  agreements  herein  stipulated 
to  be  kept  and  performed  by  said  party  of  the  first  part,  then 
it  shall  be  lawful  for  said  party  of  the  second  part,  his  heirs  or 
assigns,  to  abandon  said  premises  and  to  refuse  to  pay  rent  or 
further  to  keep  or  observe  the  covenants  herein  stipulated  by 
him  to  be  kept  and  observed." 

The  remedy  of  a  tenant  for  a  breach  of  covenant  which  does 
not  amount  to  an  eviction  is  an  action  for  damages  for  breach 
of  the  covenant.131 

From  what  has  been  said  these  two  propositions  are  de- 
duced: 

IN  AN  ACTION  TO  BECOVEB  BENT  THE  TENANT  MAY 
PLEAD  SET-OFF,  RECOUPMENT,  NON-FULFILLMENT  OF  THE 
CONTRACT  ON  THE  PART  OF  THE  LANDLORD  OR  ANY  OTHER 
DEFENSE  WHICH  WOULD  BE  AVAILABLE  IN  AN  ACTION  TO 
RECOVER  THE  PRICE  OF  GOODS.'32  IN  A  PROCEEDING  TO  BE- 
COVEB POSSESSION  FOB  NON-PAYMENT  SUCH  DEFENSES 
ABE  NOT  ADMISSIBLE. 

mKeating  vs.  Springer,  14G  111.,  481;  22  L.  R.  A.,  544. 
"'Keating  vs.  Springer  (ante);  McSloy  vs.  Ryan,  27  Mich.,  110. 


214  LANDLORD  AND  TENANT. 

The  tenant's  defense  can  only  rest  upon  the  proposition  that 
he  has  paid  the  rent,  or  that  no  rent  was  payable.  As  we 
have  seen  if  the  tenant  has  paid  a  charge  against  the  land, 
which  it  was  the  duty  of  the  landlord,  and  the  non-payment 
of  which  exposed  the  tenant  to  suit,  distress  or  eviction,  that 
is  payment  of  rent. 

RESTRICTIONS  ON  THE  USE  OF  THE  LEASED  PREMISES. 

As  a  general  rule  any  clause  in  a  lease  restricting  the  uses 
which  may  be  made  of  leased  property  is  legal  and  binding, 
and  will  be  enforced  by  the  courts.  An  injunction  may  be 
sued  out  to  prevent  such  a  use  as  is  forbidden  by  the  lease, 
or  if  the  lease  is  effectually  drawn  for  that  purpose  it  may  be 
treated  as  a  ground  of  forfeiture.  An  action  for  damages  will 
also  lie.  There  is,  howrever,  one  qualification  to  the  rule.  The 
restriction  must  be  such  that  a  breach  of  it  will  wrork  some 
injury  to  the  landlord.  The  courts  would  not  concern  them^ 
selves  with  restrictions  which  were  merely  whimsical  or  ca- 
pricious. But  a  restraint  on  carrying  on  certain  trades  or 
businesses  which  might  be  considered  undesirable,  is  a  lawful 
restraint,  although  the  landlord  may  not  live  or  own  any  other 
property  in  the  locality.  As  landlord,  he  has  an  interest  in  the 
general  welfare  and  character  of  the  neighborhood,  for  this 
affects  the  value  of  his  own  property.  ]?ut  such  restrictions 
as  affect  only  the  character  of  the  neighborhood  are  no  longer 
binding  after  the  landlord  has  himself  done  or  consented  to 
something  which  destroys  the  value  of  the  restriction.  For 
instance,  if  a  landlord  rents  a  part  of  a  building  with  a  re- 
striction against  carrying  on  a  liquor  traffic  in  it,  and  after- 
wards rents  another  part  of  the  same  building  for  a  liquor 
business,  the  restriction  in  the  first  lease  becomes  inoperative. 
The  liquor  traffic  being  once  admitted,  it  can  be  of  no  conse- 


LANDLORD  AND  TENANT.  215 

quence  to  the  neighborhood  whether  in  a  given  building  there 
is  one  liquor  store  or  two. 

What  is  here  said  is  said  by  way  of  illustration  and  as  to  a 
case  where  the  ground  of  the  restriction  is  the  undesirable 
character  of  the  forbidden  business.  Notwithstanding  what 
has  been  said,  such  a  restriction  might  be  lawful  where  its 
purpose  was  to  prevent  competition  in  a  certain  business 
within  certain  limits.  And  this  illustrates  the  general  prin- 
ciples which  have  been  already  stated;  that  is,  that  restric- 
tions are  in  themselves  lawful,  but  they  will  not  be  enforced 
by  the  courts  unless  it  appears  that  the  landlord  has  some  sub- 
stantial interest  in  having  them  enforced, — or,  in  other  words, 
that  he  will  suffer  some  damage  if  they  are  disregarded.  The 
courts  are  not  agreed  as  to  how  far  a  mere  provision  in  a  lease 
tiiat  premises  are  to  be  used  for  a  certain  purpose  is  a  restric- 
tion upon  their  being  used  for  any  other  purpose.  No  very 
clear  principle  can  be  discovered  running  through  the  cases 
except  that  under  this  head  it  may  be  said  that  every  case 
will  generally  be  determined  upon  its  own  facts.  A  tenant 
may  never  use  the  leased  premises  for  an  unlawful  business, 
or,  for  any  business  which  amounts  to  a  nuisance,  and  if  he 
does  so  he  will  be  liable  for  an  injury  sustained  by  the  land- 
lord arising  out  of  such,  improper  use.133  But  as  the  restric- 
tions which  the  law  imposes  in  this  regard  are  only  suck  as 
it  imposes  on  the  use  of  real  property  by  the  owner,  or  who- 
ever may  be  in  possession,  they  require  no  special  attention 
here  in  a  discussion  of  the  legal  relations  of  landlord  and 
tenant.  It  is  only  necessary  to  call  attention  to  the  fact  that 
by  statute  in  many  of  the  States  using  the  premises  for 

133Thus  it  was  held  that  a  tenant  who  stored  cotton  in  a  building 
hired  for  the  storage  of  vehicles  was  liable  for  injuries  resulting  to  the 
tuilding  by  fire  which  by  reason  of  the  dangerous  character  of  the 
cotton  consumed  the  building. 

Anderson  vs.  Miller,  96  Tenn.,  35;  31  L.  R.  A.,  604. 


216  LANDLORD  (AND  TENANT. 

an  unlawful  business  is  a  ground  of  forfeiture  of  the  lease, 
and  in  some  cases  works  a  forfeiture  so  that  ipso  facto  the 
occupant  ceases  to  be  a  tenant  and  becomes  a  mere  trespasser. 

THE  COVENANT  FOR  QUIET  ENJOYMENT. 

The  covenant  for  quiet  enjoyment  is  the  formal  expression 
in  a  lease,  of  the  essential  obligation  which  always  devolves 
upon  a  landlord  as  soon  as  the  relation  of  landlord  and  tenant 
is  established.  The  general  nature  of  the  obligation,  and  that 
it  is  implied  in  every  lease,  has  already  been  explained. 
Upon  a  careful  consideration  of  the  subject,  it  will  be  seen 
that  the  obligation  is  to  be  examined  from  two  points  of  view, 
the  obligation  which  rests  upon  the  landlord  as  to  the  acts 
of  third  persons,  and  the  obligation  which  rests  upon  him  as 
to  his  own  acts  or  the  acts  of  those  claiming  under  him. 

By  third  persons,  is  meant  those  who  are  strangers  to  the 
landlord's  title,  as  it  was  when  the  lease  was  made,  or,  in 
other  words,  persons  who  have  not  obtained  from  the  landlord 
any  rights  in,  or  affecting  the  leased  premises  since  the  making 
of  the  lease.  There  is  but  one  act  of  such  persons  which  the 
landlord  is  bound  to  fight  for  the  benefit  of  the  tenant.  If  any 
such  person  begins  or  defends  a  suit  or  proceeding  in  court 
against  the  tenant  and  the  suit  or  defense  is  based  upon  a 
claim  that  the  adversary  had,  at  the  time  the  lease  was  made, 
a  title  which  was  better  than  the  landlord's,  and  that  it  is  su- 
perior to  the  title  acquired  by  the  lease,  the  landlord,  on  proper 
notice  from  the  tenant,  must  defend  the  title  under  which  he 
made  the  lease.  If  he  refuses,  or  neglects,  or  fails  to  do  so, 
and  judgment  passes  against  the  tenant,  he  is  thereby  absolved 
from  the  obligations  of  the  lease.  It  is  of  no  consequence 
whether  the  tenant  is  plaintiff  or  defendant,  or  what  is  the 
form  of  the  action.  For  instance,  if  the  tenant  brings  an  ac- 
tion of  trespass  and  the  trespasser  pleads  title,  the  landlord 


LANDLORD  AND  TENANT.  217 

is  as  much  hound  to  defend  the  title  as  though  an  action  of 
ejectment  were  brought  against  the  tenant.  But  this  is  the 
full  extent  of  the  obligation  of  the  landlord  as  to  the  acts  of 
third  persons.  The  landlord  is  under  no  obligation  to  defend 
the  tenant  against  trespasses  or  other  injurious  acts,  at  the 
hands  of  those  who  do  not  claim  title. 

When,  however,  the  act  complained  of  is  done  by  the  land- 
lord or  by  one  who  has  received  the  right  to  do  it  from  the 
landlord,  since  the  making  of  the  lease,  different  principles 
apply.  The  landlord  having  covenanted  that  the  tenant  should 
peaceably  and  quietly  enjoy  the  demised  premises  during  the 
stipulated  term  is  bound  to  do  no  act  which  interferes  with 
that  peaceable  and  quiet  enjoyment,  or,  in  other  words,  with 
the  tenant's  possession.  If  he  does,  he  is  liable  upon  the  cove- 
nant for  quiet  enjoyment.  If  he  grants  a  right  or  authority  to 
another  to  do  an  act  which  interferes  with  the  tenant's  quiet 
and  peaceable  possession,  and  the  act  is  done  pursuant  to  this 
authority,  the  landlord  is  liable  on  this  covenant.  If  the  act 
done  is  of  a  serious  and  permanent  character,  the  tenant  may 
treat  it  as  an  eviction.  But  whether  the  act  complained  of  is 
done  by  the  landlord  himself,  or  by  one  who  has  derived  his 
authority  to  do  it  from  the  landlord  since  the  making  of  the 
lease,  in  either  case  the  result  is  the  same.135  It  is  a  breach  of 
the  covenant  for  quiet  enjoyment  for  which  the  landlord  is 
liable.  For  such  an  injury,  however,  the  remedy  by  an  action 
for  a  breach  of  the  covenant  for  quiet  enjoyment  is  not  exclus- 
ive. The  tenant  may,  if  he  prefers,  have  an  action  of  trespass. 

The  covenant  for  quiet  enjoyment,  as  is  apparent  from  its 
terms,  is  only  broken  by  acts  which  interfere  with  the  tenant's 
possession. 

""Collins  vs.  Lewis,  53  Minn.,  78;  19  L.  R.  A.,  822. 


218  LANDLORD  AND  TENANT. 

The  injury  to  the  possession  must  be  actual,  and  not  merely 
threatened  or  constructive.  And  the  disturbance  must  be  of 
so  important  and  permanent  a  character  as  to  amount  in  law 
to  an  eviction.136 

THEREFORE  THE  COVENANT  FOR  QUIET  ENJOYMENT 
MAY  PROPERLY  BE  DEFINED  AS  A  COVENANT  AGAINST 
EVICTION, 

and  a  merely  casual  trespass  not  calculated  to  work-  a  serioua 
or  continuous  injury  to  the  tenant's  possession  of  the  leased 
premises  is  not  a  breach  of  this  covenant,  even  though  com- 
mitted by  the  landlord  himself137 

THE  RIGHT  OF  RE-ENTRY  OR  FORFEITURE. 

What  is  called  the  re-entry  clause  in  a  lease  is  inserted  for 
the  purpose  of  making  the  non-fulfillment  by  the  lessee  of  his 
covenants  or  agreements  grounds  for  forfeiture.  Without  this 
clause,  a  mere  covenant  is  not  a  condition,  and  a  breach  of  it 
is  no  ground  for  forfeiture,  but  only  exposes  the  delinquent 
party  to  an  action  for  damages  for  the  breach.  This  was  true 
even  of  the  covenant  to  pay  rent,  and  formerly  a  tenant  could 
not  be  dispossessed  for  the  non-payment  of  rent  unless  the 

138Ellis  vs.  Welch,  6  Mass.,  246.  ^ 

Dexter  vs.  Manley,  4  Gush.,  14. 

George  vs.  Putney,  4  Gush.,  351. 

Gardner  vs.  Keteltas,  3  Hill,  330. 

Mayor  vs.  Mabie,  13  N.  Y.,  151. 

Frost  vs.  Ernest,  4  Whart,  86. 

R.  R.  Co.  vs.  Sehmoele,  57  Pa.  St.,  271. 

Moore  vs.  Weber,  71  Pa.  St.,  429. 

Gazzolo  vs.  Chambers,  73  111.,  75. 

Hayner  vs.  Smith,  63  111.,  430. 

King  vs.  Reynolds,  67  Ala.,  229. 

137So  held  when  the  landlord  entered  and  assaulted  the  tenant. 
Foster  vs.  Mapes,  Cro.  Eliz.,  212;  and  of  a  formal  entry  by  the  landlord 
on  which  to  found  a  suit  to  dispossess  the  tenant. 

International  Trust  Co.  vs.  Schumann,  33  N.  E.  Rep.,  509. 


LANDLORD  AN'D  TENANT.  210 

lease  contained  a  clause  making  non-payment  of  rent  a  ground 
of  forfeiture.138 

Of  re-entry  clauses  it  is  to  be  observed  generally  that  they 
are  not  favored  by  the  law.  It  is  said  that  equity  abhors  a 
forfeiture  and  the  law  is  not  much  more  favorable  to  a  for- 
feiture. The  difference  between  law  and  equity  in  regard  to 
inequitable  or  unreasonably  harsh  or  unjust  contracts  is  this: 
Equity  not  only  refuses  to  enforce  them,  but  also  undertakes 
to  relieve  a  party  from  their  consequences,  or,  in  other  words, 
Avill  over-ride  their  provisions.  Law,  while  professing  to  en- 
force contracts  as  the  parties  have  made  them,  will  construe 
contracts  with  great  strictness  as  against  parties  to  whom 
they  give  an  undue  advantage,  and  will  be  astute  to  discover 
legal  grounds,  or,  it  might  justly  be  said,  excuses,  to  defeat 
inequitable  stipulations.  Therefore,  it  may  be  said  as  to  re- 
entry clauses  that,  as  they  provide  for  forfeitures,  the  law  will 
always  construe  them  strictly  as  against  the  landlord,139  and, 
in  many  cases,  equity  will  give  relief  against  their  provisions. 
The  reason  for  this  is  evident.  The  damage  which  the  tenant 
would  suffer  by  forfeiting  his  lease  would  in  many  cases  be 
altogether  disproportionate  to  the  injury  caused  to  the  land- 
lord by  the  breach  of  some  comparatively  unimportant  condi- 
tion, for  a  breach  of  which,  a  forfeiture  is  sought  to  be  en- 
forced. 

The  form  of  the  re-entry  clause  indicates  that  in  order  to 
get  the  benefit  of  its  provisions  the  landlord  must  actually  re- 
enter  upon  the  demised  premises  and  there  assert  his  right  to 
"re-possess  the  said  demised  premises."  But  the  language  of 
this  clause  has,  with  the  lapse  of  time,  become  a  mere  form 

"'Covenant  not  to  assign  may  be  made  a  condition,  and  when  it  is 
a  breach  of  it  is  ground  of  forfeiture  under  a  proper  re-entry  clause. 

Kew  vs.  Trainor,  37  N.  E.  Rep.  (111.),  223. 
""Thompson  vs.  Christie,  138  Pa.,  230;  11  L.  R.  A.,  236. 


220  LANDLORD  AXD  TENANT. 

of  words.  It  is  no  longer  necessary  or  customary  to  make  an 
actual  re-entry  upon  the  land.  Any  act  or  declaration  on  the 
part  of  the  landlord  which  unequivocally  expresses  his  inten- 
tion to  claim  a  forefeiture,  is  sufficient  for  that  purpose;  but 
there  must  be  some  act  on  the  part  of  the  landlord.  A  for- 
feiture is  not  self -operative.140 

Xor  does  the  law  now  permit  a  parjy  to  forcibly  remove  and 
put  out  the  occupants  of  premises  whose  possession  he  is  en- 
titled to.  This  is  forbidden  by  the  statutes  of  forcible  entry 
and  detainer,  a  particular  discussion  of  which  will  be  found 
in  another  portion  of  this  treatise.141  But  attention  is  called 
to  the  subject  here  in  order  to  direct  the  mind  of  the  student 
to  the  general  legal  principle  that  no  man  can  ever  assert 
aggressively  a  civil  right  by  an  assault,  or,  as  it  is  otherwise 
said,  by  a  breach  of  the  peace.  He  may  use  force  defensively, 
within  certain  limits,  to  maintain  his  property  rights,  includ- 
ing the  possession  of  real  estate. 

THE  TENANT'S  COVENANT  TO  REPAIR. 

In  discussing  the  relation  of  landlord  and  tenant,  and  the 
mutual  duty  of  defense  and  protection  devolving  upon  the 
parties  to  the  lease  contract,  attention  has  already  been  called 
to  the  tenant's  duty  to  make  some  repairs  which  may  be  neces- 
sary to  save  the  leased  premises  from  waste  and  destruction. 
That  duty  is  one  which  is  inherent  in  the  relation  itself  and  is 
to  be  carefully  distinguished  from  an  obligation  to  make  re- 
pairs which  rests  upon  express  contract. 

There  are  many  different  forms  of  the  tenant's  cove- 
nant to  repair.  The  one  given  in  the  form  of  lease  se- 

1MWestmoreland  Natural  Gas  Co.  vs.  Dewitt,  130  Pa.,  235;  5  L.  R. 
A.,  731. 

141As  to  the  landlord's  right  to  enter  peaceably  and  his  right  to 
maintain  such  possession  by  force,  see  Smith  vs.  Det.  B.  &  L.  Ass. 
(Mich.);  39  L.  R.  A.,  410. 


LANDLORD  AND  TENANT.  221 

lected  for  examination  is  a  usual  form.  There  is  one  cardinal 
principle  which  the  student  must  constantly  keep  in  mind  while 
examining  this  subject.  Every  word  in  a  covenant  to  repair 
must  be  carefully  weighed  in  determining  the  true  meaning 
of  the  covenant.  No  covenants  have  been  so  minutely  exam- 
ined and  so  harshly  construed  as  against  the  tenant  as  cove- 
nants to  repair.  Covenants  to  repair  have  been  construed  as 
covenants  to  rebuild  in  case  of  destruction  by  lire  or  tempest, 
an  obligation  which  it  is  safe  to  say  that  in  the  great  majority 
of  cases  the  tenant  did  not  dream  he  was  taking  upon  himself 
when  he  signed  the  lease.  To  construe  a  covenant  to  repair 
or  keep  in  repair  as  a  covenant  to  rebuild  is  certainly  doing 
violence  to  the  plain  meaning  of  the  words.  There  is  no  more 
reason  why  a  covenant  to  repair  a  building  should  be  con- 
strued as  requiring  one  to  build  a  new  one  than  that  a  contract 
to  repair  a  pair  of  shoes  should  require  the  furnishing  of  a  new 
pair.  Yet  this  construction  has  been  so  firmly  attached  to  the 
word  repair  that  it  will  require  legislation  to  get  rid  of  it,  al- 
though it  clearly  violates  that  fundamental  rule  of  interpreta- 
tion which  requires  that  all  contracts  be  construed  so  as  to 
carry  out  the  real  intent  and  meaning  of  the  parties.142 

AN  UNQUALIFIED  COVENANT  TO  REPAIR  AND  KEEP  IN 
REPAIR  BINDS  THE  TENANT  TO  REBUILD  IN  CASE  OF  DE- 
STRUCTION FROM  WHATEVER  CAUSE,  EXCEPT  THE  ACT  OF 
THE  LANDLORD. 

The  rule  as  stated  applies  to  the  injury  or  destruction  of 
buildings  by  fire,  or  by  tempest,  or  by  the  act  of  a  stranger, 
or  of  mobs,  or  of  public  enemies,  or  even  on  account  of  an  in- 
herent defect  in  construction.  In  short,  the  tenant  who  has 

14JThis  view  of  the  law  has  recently  been  adopted  in  Wyoming. 
Marshall  vs.  Rugg,  33  L.  R.  A.,  679. 

See  also  "Wattles  vs.  South  Omaha  Ice  Co.,  50  Neb.,  251;  36  L.  R. 
A.,  424. 


222  LANDLORD  AND  TENANT. 

entered  into  this  covenant  is  bound  to  make  good  any  injury 
which  human  power  can  remedy,  but,  as  he  is  not  required  to 
perform  the  impossible,  he  is  not  liable  in  damages  for  not 
doing  so.  On  this  principle  it  is  held  that  he  is  not  liable  for 
trees  blown  down  in  a  tempest,  for  it  is  not  within  the  power 
of  man  to  restore  them.  Most  leases  now  contain  a  provision 
which  expressly  removes  the  harshness  of  this  construction. 
This  provision  is  usually  as  follows:  "The  said  party  of  the 
second  part  will,  at  his  own  expense,  during  the  continuance 
of  this  lease,  keep  the  said  premises  and  every  part  thereof 
in  good  repair,  reasonable  use  and  wear  thereof  and  damage 
by  the  elements  excepted." 

The  covenant  to  repair  and  keep  in  repair  extends  not  only 
to  the  premises  in  the  condition  in  which  they  were  when  the 
lease  took  effect,  but  also  to  all  improvements  made  during  the 
term.  Therefore,  if  the  tenant  erects  new  buildings  on  the  de- 
mised premises,  which  become  a  part  of  the  realty,  he  is  bound 
under  this  covenant  to  keep  them  in  repair,  and  in  case  of  de- 
struction to  restore  them.  The  particular  form  of  words  used 
in  the  covenant  to  keep  in  repair  is  not  usually  important,  this 
covenant  in  whatever  form  it  appears  being  construed  as  a 
covenant  to  keep  the  premises  in  substantially  the  same  state 
of  repair  as  they  were  when  the  lease  took  effect.143  But  the 
covenant  to  repair  requires  the  tenant  to  put  the  premises  in 
repair,  although  they  should  be  out  of  repair  when  he  takes 
possession.144  But  as  to  this,  the  doctrine  of  the  law  is  that 
in  making  repairs  regard  is  to  be  had  to  the  general  condition 
of  the  premises  when  the  lease  is  made,  and  such  repairs  only 
are  to  be  made  as  are  fitting  and  suitable.  If  the  premises  are 
old  and  dilapidated  repairs  would  suffice  which  would  be  held 

148St.  Joseph  &  St.  L.  R.  Co.  vs.  St.  Louis  I.  M.  &  S.  R.  Co.,  135 
Mo.,  173;  33  L.  R.  A.,  607. 

'"Miller  vs.  McCardell,  19  R.  I.,  304;  30  L.  R.  A.,  682. 


LANDLORD  AND  TENANT.  223 

inadequate  in  the  case  of  a  new  house  in  good  condition  except 
as  to  the  part  requiring  repair.  In  other  words,  the  obligation 
to  repair  will  be  construed  according  to  the  general  condition 
of  the  leased  premises. 

THE  COVENANT  NOT  TO  SUB-LET  OR  ASSIGN. 

The  right  to  sell  or  otherwise  dispose  of  property  is  of  the 
very  essence  of  the  right  of  property,  and  therefore  a  tenant 
has  a  right  to  make  any  disposition  that  he  chooses  of  the 
rights  which  he  acquires  by  his  lease.  But  as  the  right  to  sell 
or  otherwise  dispose  of  property  is  of  the  essence  of  the  right 
of  property,  it  follows  that  the  right  to  dispose  of  the  whole 
involves  the  right  to  dispose  of  any  part;  the  right  to  convey 
an  unrestricted  power  of  alienation  involves  the  right  to  con- 
vey property  with  a  limited  power  of  alienation.  A  grantor 
or  lessor  has,  therefore,  the  right  to  attach  such  limitations 
and  conditions  to  his  grant  or  lease  as  he  chooses,  except  in 
so  far  as  he  is  restrained  by  the  positive  provisions  of  law. 
Some  limitations  and  conditions  are  void  because  either  they 
are  contrary  to  public  policy  or  irreconcilably  inconsistent 
with,  or,  as  it  is  commonly  said,  repugnant  to  the  right  or 
estate  to  which  they  are  attached.  The  covenant  not  to  sub- 
let or  assign  is,  generally  speaking,  a  valid  limitation  or  re- 
striction upon  the  right  which  the  tenant  acquires  by  his  lease, 
and  will  be  upheld  by  the  courts. 

A  BREACH  OF  THE  COVENANT  NOT  TO  SUB-LET  OR  AS- 
SIGN IS  NOT  A  GROUND  FOB,  FORFEITURE  UNLESS  EX- 
PRESSLY MADE  SO  BY  THE  PROVISIONS  OF  THE  LEASE. 

THE  COVENANT  NOT  TO  SUB-LET  OR  ASSIGN  IS  ONE 
WHICH  IS  NOT  FAVORED  BY  THE  LAW. 

This  is  in  accord  with  the  general  legal  doctrine  that  "re- 
strictions upon  alienation  are  not  favored  by  the  law."  As^a 
consequence,  covenants  not  to  sub-let  or  assign  are  construed 


2'24  LANDLORD  AND  TENANT. 

strictly  and  are  not  allowed  to  have  any  force  beyond  the  strict 
and  literal  meaning  of  the  words  in  w7hich  they  are  expressed. 
A  covenant  against  sub-letting  is  not  broken  by  an  assignment, 
nor  is  a  covenant  against  assignment  broken  by  sub-letting. 
Xor  is  either  of  these  covenants  broken  by  a  permitted  occupa- 
tion of  the  demised  premises  under  a  license.  We  have  already 
seen  the  essential  difference  which  exists  between  the  occupa- 
tion of  a  licensee  and  the  possession  of  a  tenant. 

THE  COVENANT  AGAINST  ASSIGNMENT  IS  NOT  BROKEN 
BY  AN  INVOLUNTARY  ASSIGNMENT  BY  OPERATION  OF 
LAW. 

If  an  execution  is  levied  upon  a  leasehold,  the  purchaser  at 
the  execution  sale  succeeds  to  the  tenant's  rights  as  assignee, 
yet  this  is  held  not  to  be  a  breach  of  the  covenant  nor  a  ground 
of  forfeiture.  The  same  thing  is  true  if  by  order  of  a  court  a 
bankrupt  makes  an  assignment  for  the  benefit  of  creditors. 
It  is  a  sufficient  reason  for  this  doctrine  that  if  the  law  were 
not  so  a  man  might,  under  cover  of  a  lease,  put  valuable  prop- 
erty beyond  the  reach  of  his  creditors.  So  a  man  may  lawfully 
devise  a  leasehold,  or,  upon  his  death,  the  leasehold  will  de- 
volve upon  his  executors  or  administrator.  And  in  all  the 
cases  cited  the  execution  purchaser,  the  receiver  in  bankruptcy, 
the  devisee,  or  the  personal  representative  will  take  the  prop- 
erty freed  from  the  covenant  against  assigning  or  sub-letting, 
and  the  reason  for  this  is  sufficiently  obvious  when  the  nature 
of  the  covenant  and  the  reasons  for  demanding  it  are  consid- 
ered. The  purpose  of  the  covenant  is  to  secure  a  certain  per- 
son as  tenant  whose  personal  character  and  whose  financial 
responsibility  are  such  as  to  make  him  acceptable  as  tenant. 
When  this  is  no  longer  possible  the  whole  purpose  sought  to 
be  attained  by  the  covenant  has  become  unattainable  and 
there  is  no  longer  any  reason  for  its  existence.  The  reasoning 


LANDLORD   AND   TENANT.  225 

is  analogous  to  that  which  supports  the  well-known  legal 
maxim,  "Cessante  ratione,  legis  cessat  ipsa,  lex."  And  this 
leads  us  naturally  to  the  succeeding  proposition. 

WHEN  THE  TENANT  IS  ONCE  RELEASED  FROM  THE  COV- 
ENANT AGAINST  ASSIGNMENT,  HE  IS  RELEASED  ABSO- 
LUTELY, AND  IT  DOES  NOT  BIND  ANY  PERSON  WHO  SUC- 
CEEDS TO  HIS  RIGHTS. 

Although  judges  have  sometimes  said  things  which  would 
seem  to  conflict  with  the  foregoing  proposition,  the  clear  weight 
of  authority  is  in  favor  of  the  doctrine  as  stated.  The  cove- 
nant against  assignment  is  an  entire  one,  and  when  once  it 
ceases  to  operate,  whether  by  operation  of  law  in  the  case  of 
an  involuntary  assignment,  or  by  express  consent  of  the  land- 
lord, or  by  waiver  of  a  breach,  it  is  extinguished  forever.  It 
is  also  indivisible,  and  when  it  ceases  to  operate  as  to  a  part 
of  the  demised  premises  it  has  no  effect  as  to  the  remaining 
part. 

It  must,  however,  be  borne  in  mind  that  the  rules  which 
have  been  stated  are  simply  rules  which  the  law  applies  to 
ordinary  covenants  against  assignment.  It  is  not  intended 
that  it  is  made  impossible  by  the  law  for  parties  to  enter  into 
covenants  against  assignment  which  will  prevent  even  an  in- 
voluntary alienation.  They  may  also  consent  to  or  waive  a 
breach  of  the  covenant  in  a  single  instance  or  to  a  certain  ex- 
tent, and  provide  that  it  shall  not  be  construed  as  a  general 
waiver  of  the  covenant,  and  that  the  covenant  shall  be  oper- 
ative thereafter.  This  necessarily  follows  from  the  proposi- 
tion that  parties  may  -attach  to  their  leases  such  conditions 
as  they  choose,  so  long  as  they  do  not  contravene  the  positive 
provisions  of  law.  But,  in  order  to  prevent  the  rules  which 
have  been  stated  having  effect,  the  language  used  must  be 
clear  and  unmistakable  in  its  meaning. 


LANDLORD   AND   TENANT. 

THE   SURRENDER   OF   POSSESSION   BY   THE   TENANT   AT   THE 
END  OF  HIS  TERM. 

In  pursuance  of  the  general  plan  of  this  work,  we  now  pro- 
ceed to  examine  the  position,  rights  and  obligations  of  a  ten- 
ant who  quietly  surrenders  possession  of  the  leased  premises 
at  the  expiration  of  his  term. 

The  common  law  day  begins  at  midnight,  and  so  the  tenant's 
term  expires  at  midnight  on  the  last  day  of  the  term.  Before 
the  expiration  of  his  term  the  tenant  should  remove  all  of  his 
goods  and  all  the  fixtures  which  he  is  entitled  to  and  desires 
to  take  with  him.  He  should  also  have  the  premises  in  that 
state  of  repair  which  his  contract  requires.  How  far  he  may 
be  required  to  remove  all  rubbish  which  has  accumulated  upon 
the  premises  during  his  tenancy  is  not  very  clearly  settled. 
Leaving  rubbish  on  the  premises,  has  been  held  not  to  be  a 
breach  of  the  covenant  to  leave  the  premises  in  good  repair. 
But,  as  it  is  clear  that  no  man  has  a  right  to  deposit  rubbish 
on  another  man's  land,  it  wrould  seem  to  be  equally  clear  that 
he  has  no  right  to  let  his  rubbish  remain  on  another  man's 
land  after  his  right  to  the  possession  has  expired,  and  that 
a  common  law  action  would  lie  against  one  who  does  it. 

If  the  tenant  surrenders  possession  prior  to  the  end  of  his 
term,  and  his  surrender  is  accepted  by  the  landlord,  the  lease 
is  terminated.146 

COVENANT  FOR  RENEWAL. 

A  PROVISION  IN  A  LEASE  FOR  AN  EXTENSION  OR  RE- 
NEWAL IS  FOR  THE  BENEFIT  OF  THE  TENANT. 

A  provision  for  an  extension  or  renewal,  without  stating 
who  may  have  the  extension  or  renewal,  is  regarded  by  the  law 

146Kneeland   vs.    Schmidt,   78  Wis..  345;  11  L.  R.  A..  498. 

The  taking  of  possession  by  landlord  does  not  necessarily  amount 
to  an  acceptance  of  the  surrender,  for  on  notice  to  the  tenant  the  land- 
lord may  re-let  the  premises  and  apply  the  rent  received  on  the  original 
lease.  Alsup  vs.  Banks,  68  Miss.,  664;  13  L.  R.  A.,  598. 


LANDLORD   AND   TENANT.  227 

as  a  provision  for  the  benefit  of  the  tenant,  and  he,  and  not  the 
landlord,  is  entitled  to  exercise  the  option.  If  there  is  simply 
an  agreement  that  at  the  end  of  the  term  the  landlord  will 
give  a  renewal,  this  means  a  new  lease  for  the  same  length  of 
time  at  the  same  rent,  and  in  all  respects  on  the  same  terms 
as  the  original  lease,  except  that  the  new  lease  need  not  stipu- 
late for  any  further  renewal.  As  explained  before,  the  new 
lease  should  reserve  the  right  to  the  tenant  to  remove  fixtures 
at  the  end  of  the  second  term.  If  the  agreement  is  for  a  renewal 
on  the  tenant's  giving  a  certain  notice,  he  must  strictly  comply 
with  the  condition,  or  'he  wrill  lose  his  right.  And  as  a  pro- 
vision for  a  renewal  means  that  a  new  lease  is  to  be  signed, 
he  should  have  it  prepared,  signed  by  himself,  and  present  it 
to  the  landlord  for  his  signature.  An  agreement  for  an  ex- 
tension of  the  term  does  not  require  the  making  of  a  new  lease. 
If  the  lease  simply  says,  for  instance,  "with  the  privilege  of 
three  years  more,"  the  tenant  cannot  be  required  to  decide 
whether  or  not  he  will  take  the  extension  until  the  end  of  his 
first  term.  And  he  is  not  required,  unless  it  is  expressly  stip- 
ulated in  the  lease,  to  give  any  notice  of  his  decision.  By 
remaining  in  possession,  he  signifies  his  election  to  hold  for 
the  additional  time.145  But  when  he  has  held  over,  the  tenant 
as  well  as  the  landlord  is  held  for  the  full  additional  term. 
The  right  to  a  renewal  or  an  extension  passes  with  the  lease 
to  any  person  to  whom  the  lessee's  interest  may  lawfully  be 
transferred.  In  the  language  of  the  courts,  "it  is  not  a  mere 
personal  covenant,  but  it  is  a  covenant  which  runs  with  the 
land."  Anybody  who  purchases  the  land  after  the  making  of 
such  a  lease  is  as  much  bound  by  the  agreement  for  a  renewal 
or  extension  as  the  original  lessor. 

""Hughes  vs.  Windpfennig,  37  N.  E.  Rep.  (Ind.),  432. 
N.  B.    In  Indiana  a  verbal  lease  for  three  years  is  valid. 


228  TENANTS   AT   SUFFERANCE. 

TENANCIES  FOR  INDEFINITE  TERMS. 

Tenancies  under  this  general  head  are  classified  as  ten- 
ancies at  sufferance,  tenancies  at  will,  and  tenancies  from 
year  to  year.  Under  this  latter  head  will  be  included  ten- 
ancies from  day  to  day,  week  to  week,  month  to  month,  quarter 
to  quarter,  etc.;  for  they  are  all  essentially  of  the  same  nature, 
and  are  governed  by  the  same  rules. 

TENANCIES  AT  SUFFERANCE. 

A  TENANT  AT  SUFFERANCE  IS  ONE  WHO  HAS  COME 
LAWFULLY  INTO  POSSESSION  AND  CONTINUES  TO  HOLD 
OVER  AFTER  HIS  RIGHT  TO  THE  POSSESSION  HAS  ENDED. 

He  is  tenant  at  sufferance  to  that  person  who  has  succeeded 
to  the  right  of  possession,  and  he  remains  a  tenant  at  sufferance 
until  by  an  exercise  of  the  will  or  option  of  the  person  who 
has  succeeded  to  the  right  of  possession  he  becomes  either  a 
trespasser,  or  a  tenant  at  will,  or  a  tenant  from  year  to  year. 
By  remaining  in  possession  after  his  right  has  terminated  he 
puts  into  the  power  of  the  person  who  has  the  right  to  pos- 
session to  put  him  in  either  attitude.  The  word  landlord  is 
not  used  here  because  this  relation  may  grow  out,  and  does 
frequently  grow  out  of  other  relations  than  those  of  landlord 
and  tenant.147  A  vendor  who  has  parted  with  his  title,  but 
remains  in  possession  as  a  tenant  at  sufferance,  is  an  in- 

"7Eichengreen  vs.  Appel,  44  111.  App.,  19. 

School  District  No.  11  vs.  Batsclie.  1O6  Mich.,  33O. 

This  was  a  proceeding  to  obtain  possession  of  a  lower  floor  of  a 
school  building. 

For  some  years  prior  to  the  commencement  of  this  action  defend- 
ant took  possession  of  premises  as  teacher.  After  termination  of  his 
employment  in  June,  1892,  defendant  continued  in  possession.  In  Au- 
gust, 1892.  demand  was  made  upon  defendant  for  possession,  which 
was  refused,  and  this  suit  was  commenced.  Under  this  hiring,  the 
relation  of  landlord  and  tenant  did  not  exist  between  the  parties,  and 
the  question  arose  as  to  nature  of  defendant's  holding,  and  his  counsel 
contended  that  he  was  not  a  tenant  at  sufferance,  because  his  tenancy 


TENANTS   AT   SUFFERANCE.  229 

stance  of  this  kind.  In  fact,  any  one  who  was  lawfully  in  pos- 
session up  to  a  certain  time,  or  up  to  the  happening  of  a  cer- 
tain event,  but  whose  right  to  possession  has  expired  by  the 
lapse  of  time,  or  the  happening  of  the  event,  by  remaining  in 
possession  thereafter  becomes  a  tenant  at  sufferance.148 

A  tenant  at  sufferance  differs  from  a  disseisor,  therefore, 
in  that  the  latter  acquires  and  retains  his  possession  by  wrong, 
whereas,  the  former  only  retains  possession  by  wrong.149 

It  is  to  be  noted,  however,  that  those  only  become  tenants 
at  sufferance  who  were  in  possession  in  their  own  right,  and 
not  those  who  were  in  possession  by  operation  of  law  on  ac- 
count of  their  relation  to  some  other  person,  as  a  guardian, 
trustee,  etc.  Those  who  come  in  by  act  of  law  never  become 
tenants  at  sufferance,  but,  upon  the  termination  of  their  right, 
immediately  become  wrongdoers  or  trespassers. 

The  situation  of  a  tenant  at  sufferance  is  anomalous.  He 
Cannot  maintain  trespass  against  the  owner.  He  is  not  liable 
for  rent,  as  rent,  for  he  is  not  in  by  virtue  of  any  contract;  but 
he  is  liable  in  an  action  for  use  and  occupation.  He  is  not 
entitled  to  notice  to  quit;  but  in  some  States  this  common  law 
rule  is  changed  by  statute,  requiring  a  notice  to  quit.  He  is 
subject  to  all  the  obligations  of  loyalty  to  the  rightful  owner's 
title  and  possession  that  inure  in  any  other  tenancy,  yet  he 
has  no  estate  which  he  can  transmit,  nor  any  rights  as  against 
the  true  owner,  arid  the  owner  may,  by  demand  or  entry,  make 
him  a  trespasser. 

did  not  grow  out  of  an  agreement  which  created  the  relation  of  land- 
lord and  tenant.  The  court  held  that  the  contract  for  services  having 
been  terminated  and  an  end  put  to  it,  in  this  way  the  right  of  occu- 
pancy was  ended,  and  that  defendant  was  in  possession  as  one  holding 
over  after  his  right  had  expired;  that  he  became  a  tenant  at  sufferance; 
and  that  it  is  not  necessary  that  such  an  estate  should  grow  out  of  the 
elation  of  landlord  and  tenant. 

1<8Harvey  vs.  Briggs,  68  Miss.,  60;  10  L.  R.  A.,  62. 

"•Russell  vs.  Fabyan,  34  N.  H.,  218. 


230  TENANTS   AT   WILL. 

The  tenant  at  sufferance,  being  a  wrongdoer,  his  rights  in 
the  property  are  limited.  He  has  no  interest  which  can  be 
assigned  to  another,  for  his  interest  is  a  mere  naked  posses- 
sion, which  he  holds  by  the  laches  of  his  landlord. 

At  the  common  law  the  landlord  could  enter  at  any  time 
and  dispossess  the  tenant  at  sufferance,  without  any  notice  to 
quit  or  demand  for  possession;  neither  was  the  tenant  entitled 
to  emblements.  The  tenant  was  entitled  to  the  crops  sown 
and  harvested  before  the  termination  of  his  tenancy. 

At  the  common  law  a  tenant,  being  a  wrongdoer,  is  liable 
for  damages  resulting  from  his  wrongful  act  in  holding  over 
after  the  termination  of  his  lease.150 

TENANCIES  AT  WILL. 

'  AN  ESTATE  AT  WILL  IS  AN  ESTATE  IN  POSSESSION  FOB 
AN  UNCERTAIN  PERIOD,  WHICH  MAY  BE  DETERMINED  AT 
THE  WILL  OF  THE  LESSOR  OR  THE  LESSEE. 

HOW  A  TENANCY  AT  WILL  ORIGINATES. 

By  consenting  to  a  tenant  at  sufferance  remaining  in  pos- 
session, the  person  entitled  to  the  possession  converts  him 

"'Russell  vs.  Fabynn,  34  X.  H  ,  213. 

Defendant  entered  into  possession  of  premises  under  a  five  years' 
lease  from  March  20th,  1847.  He  remained  in  possession  until  April 
29th,  1853,  when  the  buildings  burned  down.  On  March  22d,  1852,  the 
plaintiff  demanded  a  surrender  of  premises,  which  demand  defendant 
refused,  and  defendant  by  holding  over  arul  there  being  no  assent  by 
the  landlord  to  the  continuance  of  the  tenancy,  became  a  tenant  at 
sufferance.  Over  a  year  after  termination  of  the  five  years'  lease,  de- 
fedant  built  a  fire  on  the  premises,  which  extended  and  burned  down 
the  buildings,  and  this  action  was  brought  to  recover  the  value  of  the 
buildings.  In  holding  the  defendant  responsible  for  such  loss,  the 
court  said: 

"The  mere  disseisor  or  trespasser  who  enters  without  right  upon 
the  land  of  another,  is  responsible  for  any  damages  which  may  result 
from  any  of  his  wrongful  acts.  Such  a  disseisor  is  liable  for  any 
damages  occasioned  by  him,  whether  wilful  or  negligent.  He  had  no 
right  to  build  fires  upon  the  premises,  and  if  misfortune  resulted  from 
it,  he  must  bear  the  loss.  For  this  purpose  the  defendant  Fabyan 
stands  in  the  position  of  a  disseisor." 


TENANTS   AT    WILL.  231 

into  a  tenant  at  will,  and  clothes  him  with  all  the  rights  and 
imposes  upon  him  all  the  obligations  incident  to  that  character. 
It  is  as  though  the  remaining  in  possession  of  the  tenant  at 
sufferance  amounted  to  an  offer  to  assume  the  position  of  a 
tenant  at  will,  which  is  accepted  by  a  consent  to  that  posses- 
sion, and  this  offer  and  acceptance  make  the  contract  which 
is  the  basis  of  the  tenancy  at  will.  The  offer  is  withdrawn  by 
moving  out  while  it  remains  unaccepted,  and  thereafter  no 
subsequent  assent  can  have  the  effect  of  establishing  a  ten- 
ancy at  will. 

The  consent  on  the  part  of  the  owner  which  changes  a  ten- 
ancy at  sufferance  into  a  tenancy  at  will  may  be  express  or  im- 
plied. Any  act  which  recognizes  the  existing  possession  as 
satisfactory  and  lawful  is  sufficient.  It  has  been  held  that  the 
needful  consent  or  acquiescence  may  be  implied  from  mere  si- 
lence, or  failure  to  object  when  a  sufficient  length  of  time 
elapses  without  objection. 

A  tenancy  at  will  may  also  originate  in  an  express  agree- 
ment between  the  parties. 

ANY  AGREEMENT  THAT  ONE  MAY  GO  INTO  POSSESSION 
OF  THE  LAND  OF  ANOTHER  TO  OCCUPY  AND  HOLD  IT  SO 
LONG  AS  BOTH  CONSENT,  CONSTITUTES  A  TENANCY  AT 
WILL  WHEN  POSSESSION  IS  TAKEN  UNDER,  IT. 

Until  possession  is  taken  under  it  it  is  a  mere  nudum  pac- 
tuma,  and  confers  no  rights  upon  either  party,  for  it  lacks 
these  elements  of  certainty  and  mutual  obligation  which  are 
necessary  to  make  a  valid  executory  contract. 

At  the  common  law,  an  esvate  at  will  could  be  determined 
immediately  on  demand  of  the  landlord.  By  reason  of  this 

a"Nudum  pactum"  literally  translated  is  "naked  agreement." 
Where  there  is  no  legal  consideration  for  a  promise  it  is  nudum  pac- 
tum. 


232  TENANTS   AT   WILL. 

sudden  determination  of  the  estate  and  its  consequent  hard- 
ship upon  the  tenant,  and  for  other  reasons,  the  courts  have 
never  favored  the  estate;  and  it  is  only  where  no  other  con- 
struction can  be  put  upon  any  particular  grant  that  it  is  held 
to  be  an  estate  at  will.  At  an  early  period  this  disfavor  was 
manifested  in  the  decisions  of  the  courts  that  where  a  rent 
was  reserved  to  the  lessor,  and  it  was  paid  at  fixed  periods, 
the  tenant  was  entitled  to  notice  to  quit,  even  though  his  lease 
did  not  provide  for  any  definite  holding. 

And,  by  a  series  of  judicial  decisions,  there  arose  an  estate 
somewhat  similar  to  an  estate  at  will,  but  which  differed  from 
it  in  that  it  continued  for  certain  fixed  periods,  as  for  a  month 
or  for  a  quarter,  or  half  a  year,  or  yearly,  depending  upon  the 
periods  fixed  for  payments  of  rent. 

Such  estates  resembled  an  estate  at  will,  in  that,  while 
they  continued  for  certain  fixed  periods,  yet  the  number  or 
continuance  of  such  fixed  periods  was  uncertain. 

A  tenancy  at  will  also  arises  where  a  tenant  goes  into  pos- 
session under  an  invalid  lease  contract,  as,  for  instance,  a 
lease  by  parol  for  twenty  years,  or  a  lease  by  which  it  is 
agreed  that  the  tenant  may  remain  in  possession  as  long  as 
he  chooses  upon  the  terms  agreed  upon,  a  stipulation  which  is 
void  for  want  of  mutuality.  So,  where  an  entry  is  made  under 
a  lease  which  is  void  under  the  statute  oi  frauds,  no  term  is 
vested  in  a  lessee,  and  he  is  a  mere  tenant  at  will151  Of  course 
if  from  a  lease  for  years,  void  under  statute  of  frauds,  an  in- 
tent is  inferable,  either  from  an  annual  rent  or  other  circum- 
stances that  the  hiring  is  for  a  year,  a  contrary  rule  will  pre- 
vail, and  the  lessee  would  hold  for  a  definite. term.152 

15lTalamo  vs.  Spitzmiller,  120  N.  Y.,  37;  8  L.  R.  A.,  221. 

Huyser  vs.  Chase,  13  Mich.,  98. 
"'Laughran  vs.  Smith,  75  N.  Y.,  209. 

Brant  vs.  Vincent,  100  Mich.,  426. 


TENANTS   AT   AVILL.  233 

If  one  enters  into  possession  by  permission  under  any  kind 
of  invalid  contract,  as,  for  instance,  a  parol  gift  of  lands,  he 
becomes  a  tenant  at  will.153  Tims  it  was  held  that  one  in  pos- 
session under  a  contract  to  purchase  became  a  tenant  at  will 
when  he  forfeited  his  right  to  possession  under  the  contract  by 
a  failure  to  comply  writh  its  terms.154  So,  if  a  tenant  let  into 
possession  under  an  agreement  that  a  lease  shall  be  executed, 
and  this  agreement  is  not  carried  out,  the  tenant's  status  is 
that  of  a  tenant  at  will.155 

T'HE  CHARACTERISTICS  OF  A  TENANCY  AT  WILL. 

In  the  case  of  a  strict  general  tenancy  at  will,  the  relation 
is  a  personal  one,  and  the  tenant  has  no  estate  which  he  can 
assign  or  transfer  to  another.  But  he  is  liable  for  rent,  and  he 

»*Harrl»   vs.   Frlnk,   49   X.    V.,  24. 

The  plaintiff  entered  upon  defendant's  farm  under  a  verbal  agree- 
ment to  purchase,  and  with  permission  to  work  it  until  defendant  was 
ready  to  convey.  Plaintiff  sowed  the  land  with  oats,  but  shortly  after- 
wards he  was  expelled  by  the  defendant.  The  plaintiff  afterwards  com- 
menced harvesting  crops,  but  was  again  expelled  by  the  defendant,  who 
harvested  the  oats.  Plaintiff  then  commenced  this  action  to  recover 
the  oats.  In  the  lower  court  plaintiff  was  non-suited,  on  the  ground  that 
the  crop  was  part  of  the  realty  and  that  plaintiff  having  no  legal  title 
to  the  land  could  have  none  to  the  oats.  The  higher  court,  in  reversing 
this  decision,  held  that  the  crops,  under  the  circumstances,  were  not 
part  of  the  realty,  and  that  the  defendant  was  a  tenant  at  will,  and 
therefore  entitled  to  emblements. 

The  court  says:  "Where  one  enters  by  permission  of  the  owner  for 
an  indefinite  period  and  without  the  reservation  of  any  rent,  he  is,  by 
implication  of  law,  a  tenant  at  will.  *  *  * 

"The  permission  to  occupy  unaccompanied  by  any  contract  of  sale, 
would  clearly  create  a  tenancy  at  will.  The  effect  of  the  invalidity  of 
the  contract  of  sale  is  to  reduce  the  right  of  the  vendee  to  a  mere 
licensee,  and  enable  the  vendor  to  revoke  the  license  at  his  pleasure. 
When  he  exercises  that  right,  there  is  no  injustice  in  placing  him  in 
the  same  position  as  if  the  contract  of  sale  which  he  repudiates  had 
not  been  made.  The  holding,  from  the  beginning,  was  in  fact,  at  his 
will,  and  the  principle  upon  which  emblements  are  allowed  to  a  tenant 
at  will  would  seem  applicable  to  such  a  case." 

134Hall  vs.  Wallace,  88  Cal.,  434. 

Towne  vs.  Butterfield,  97  Mass.,  105.    But  see  Tucker  vs.  Adams, 
52  Ala.,  254. 

1MHuntington  vs.  Parkhurst,  87  Mich.,  38. 
Weed  vs.  Lindsay,  88  Ga.,  686. 


234  TENANTS   AT   WILL. 

is  subject  to  those  general  obligations  of  loyalty  which  devolve 
upon  tenants  generally.  Where  no  rent  has  been  agreed  upon 
the  amount  of  rent  to  be  paid  is  what  the  use  of  the  premises 
is  reasonably  worth.  The  other  conditions  of  the  tenancy 
are  fixed  by  the  general  law,  having  reference  always  to  what 
is  customary  and  usual  in  the  locality  and  at  the  time  when 
the  relation  subsists. 

A  tenant  at  will  has  a  "mere  scintilla  of  interest"  in  the 
land  possessed  under  such  a  tenancy.  He  is  entitled  to  crops 
raised  during  his  tenancy,  and  also  to  reasonable  estovers. 
If  the  estate  be  determined  by  the  act  of  the  lessor  or  of  God, 
after  crops  have  been  sown,  the  tenant  is  entitled  to  emble- 
ments ;  and  the  tenant  may  enter,  harvest  and  carry  away  such 
crops  after  the  determination  of  his  estate.  The  reason  of  this 
rule  is  that  the  tenant,  in  sowing  the  land,  had  a  reasonable 
presumption  that  his  estate  would  continue  until  the  crops  ma- 
tured, and  the  law-  will  not  permit  that  he  should  be  prejudiced 
by  the  unforeseen  sudden  determination  of  his  estate,  against 
which  no  provisions  could  be  made.156  If  the  tenancy  be  deter- 
mined by  the  tenant,  he  will  not  be  entitled  to  emblements.157 

At  the  common  law,  a  tenancy  at  will  could  be  determined 
without  notice,  at  the  will  of  either  party.158 

The  estate  was  also  determined  by  any  conduct  on  the  part 
of  either  landlord  or  tenant  contrary  to  the  relationship  of 
landlord  and  tenant,  and  from  which  an  intent  to  terminate 
that  relationship  could  be  inferred. 

Thus,  the  abandonment  or  surrender  of  possession  by  the 
tenant  terminated  the  tenancy. 

""Harris  vs.  Frink,  49  N.  Y.,  24. 
"'Carpenter  vs.  Jones,  63  111.,  517. 

Kiplinger  vs.  Green,  61  Mich.,  340. 
""Hilsendegen  vs.  Scheich,  55  Mich.,  468. 


TENANTS  FROM  YEAR  TO  YEAR.  235 

So,  the  conveyance  of  the  property  by  the  landlord  will,  at 
common  law,  terminate  the  estate.  In  most  of  the  States  statutes 
have  been  passed  requiring  a  notice  to  quit  to  be  served,  before 
an  estate  at  will  can  be  terminated.  The  length  of  notice 
varies  under  different  statutes.159 

TENANCIES  FROM  YEAR  TO  YEAR. 

A  TENANCY  FROM  YEAR  TO  YEAR  IS  AN  ESTATE  FOR 
AN  INDEFINITE  NUMBER  OF  DEFINITE  PERIODS. 

Under  this  head  are  classed  all  tenancies  which  run  on 
from  term  to  term  of  definite  duration,  whether  from  day  to 
day,  week  to  week,  month  to  month  or  year  to  year.  These 
tenancies  are  tenancies  at  will,  subject  to  be  determined  at 
the  will  of  either  party,  but  can  only  be  determined  at  the 
termination  of  one  of  the  rental  periods,  by  a  notice  of  such  a 
length  as  may  be  required  in  the  particular  case.  They  arise 
either  in  an  express  agreement  of  the  parties  that  the  tenant 
shall  hold  from  month  to  month  or  from  year  to  year,  etc.,  or 
in  the  holding  over,  with  the  consent  of  the  landlord,  of  a  ten- 
ant whose  lease  has  expired.160  Or  the  possession  by  consent 
under  an  invalid  lease  and  a  periodical  rent  is  paid.  Where 
they  arise  by  the  assent  to  holding  over  of  a  tenant  whose 
lease  has  expired,  they  are  governed  in  all  respects  by  the 
terms  of  the  lease  which  has  expired,  except  as  to  the  duration 
of  the  tenancy.  That  is,  the  provisions  which  the  expired 
lease  made,  as  to  rent,  payment  of  taxes,  repairs,  assignment, 
sub-letting,  etc.,  attach  themselves  to  the  continued  tenancy, 
and  control  it.161  « 

1MIn  Michigan,  for  example,  a  three  months'  notice  is  required. 
Howells'  Statutes,  Sec.  5774. 

100Bateman  vs.  Maddox,  86  Tex.,  546. 
"'Kleespies  vs.  McKenzie,  40  N.  E.,  648. 
Brant  vs.  Vincent,  100  Mich.,  426. 


236  TENANTS  FROM  YEAR  TO  YEAR. 

Thus,  if  a  tenant  for  a  year  holds  over,  with  the  consent  of 
his  landlord^  he  becomes  a  tenant  for  another  year  and  for  an 
indefinite  number  of  yearly  periods,  until  the  tenancy  is  termi- 
nated by  the  required  notice. 

So,  if  a  tenant  for  a  month,  a  quarter  or  a  half  year  holds 
over,  with  the  consent  of  his  landlord,  he  becomes  a  tenant 
for  an  indefinite  number  of  terms  of  the  same  length  as  hia 
original  term. 

As  to  a  tenant  at  will  who  has  gone  into  possession  under 
an  invalid  lease,  as,  for  instance,  a  verbal  lease  for  five  years, 
the  rule  is  that  the  provisions  of  the  invalid  lease  govern  as 
to  everything  except  the  duration  of  the  tenancy.162 

There  is  this  difference  to  be  noted  between  the  situation 
of  one  holding  over  under  a  lease  which  has  expired  and  one 
who  has  gone  into  possession  under  an  invalid  lease:  In  the 
former  case  the  term  goes  on  indefinitely,  from  term  to  term, 
until  the  tenancy  is  put  to  an  end  by  a  proper  notice  for  that 
purpose.  In  the  latter  case  the  tenancy  continues  from  term 
to  term,  as  in  the  former,  but  if  it  has  not  been  terminated 
sooner  it  comes  to  an  end  anyway  at  the  expiration  of  the  term 
fixed  by  the  invalid  lease,  without  any  notice  from  either  party. 

A  tenancy  from  year  to  year  has  all  the  incidents  of  an 
estate  at  will,  such  as  right  to  emblements  and  estovers. 

In  addition,  the  tenant  from  year  to  year  may  assign  his 
lease  to  another,  and  is  entitled  to  notice  to  quit. 

At  the  common  law,  when  the  letting  was  for  a  year,  and 
the  tenant,  by  holding  over,  becomes  a  tenant  for  an  indefinite 
number  of  yearly  periods,  the  tenancy  could  be  terminated  by 
either  party  giving  3  six  months'  notice  before  the  end  of  any 
year. 

"'Laughian  vs.  Smith,  75  N.  Y.,  205. 
Huntington  vs.  Parkhurst,  87  Mich.,  38. 


TENANTS  FROM  YEAR  TO  YEAR.  237 

If  the  tenant  holds  for  an  indefinite  number  of  periods 
which  are  shorter  than  a  year,  as  a  general  rule  the  tenancy 
can  be  terminated  on  a  notice  b}7  either  party,  equal  in  length 
to  the  period  of  the  particular  tenancy.  Thus,  a  tenancy  from 
month  to  month  can  be  terminated  on  a  month's  notice. 

In  most  of  the  States  the  statutes  regulate  the  length 
and  kind  of  notice  and  manner  of  service  necessary  to  terminate 
the  estate.  In  absence  of  a  statute  to  the  contrary,  the  notice 
to  quit  need  not  be  in  writing. 

Of  course,  where  a  tenancy  is  for  a  definite  period,  and  not 
for  an  indefinite  number  of  definite  periods,  the  rule  as  to  notice 
to  quit  does  not  apply;  for,  in  such  a  case,  the  estate  will  end 
at  the  expiration  of  the  period  limited  in  the  lease. 

Thus,  a  lease  for  a  year  would  terminate  at  the  expiration 
of  the  year;  but  if  tenant  held  over,  with  the  consent  of  his 
landlord,  he  became  a  tenant  from  year  to  year,  and  is  entitled 
to  and  must  give  a  notice,  at  common  law,  of  six  months  be- 
fore the  expiration  of  the  second  year,  in  order  to  terminate 
the  tenancy. 


CHAPTER  VI. 

MANNER  OF  ENJOYMENT  OF  ESTATES. 

ABSOLUTE  ESTATES. 

In  our  discussion  of  the  preceding  estates,  except  that  of 
estates  tail,  we  have  regarded  each  as  being  unfettered  and 
unlimited  by  conditions  of  any  kind. 

AN  ABSOLUTE  ESTATE  IS  ONE  WHICH  IS  FREE  FROM 
CONDITIONS  OR  LIMITATIONS. 

ESTATES  UPON  CONDITION. 

On  the  creation  of  an  estate,  conditions  are  sometimes  at- 
tached by  which  its  enjoyment  may  be  limited  or  defeated  by 
the  happening  or  non-happening  of  some  contingent  event,  or 
the  vesting  of  the  estate  may  be  made  dependent  upon  the 
fulfillment  of  certain  conditions. 

For  instance,  land  may  be  granted  to  one  in  fee  simple  on 
condition  that  it  be  used  for  certain  purposes.  The  condition 
limits  and  qualifies  the  grant,  yet  the  estate  is  still  one  in  fee 
simple,  and  the  only  effect  of  the  condition  is  to  qualify  the 
estate  granted.  Conditions  attached  to  an  estate,  therefore, 
do  not  create  a  distinct  estate,  but  are  merely  qualifications 
of  an  estate.1  Conditions  may  be  annexed  to  any  estate  in 
lands,  whether  it  is  in  fee,  for  life  or  for  years. 

AN  ESTATE  ON  CONDITION  IS  ONE  WHICH  MAY  BE  CRE- 
ATED, ENLARGED  OR  DEFEATED  BY  THE  HAPPENING  OR 
NOT  HAPPENING  OF  SOME  CONTINGENT  EVENT.2 

Conditions  may  be  precedent  or  subsequent. 

'Blackstone  Com.,  152. 

'Michigan  State  3auk  rs.  Hast-'ngs,  1  Douglas  (Mich.),  225. 

238 


MANNER   OF    ENJOYMENT   OF   ESTATES.  239 

If  a  condition  must  be  performed  or  fulfilled  before  an  es- 
tate shall  vest  or  become  enlarged,  the  condition  is  said  to  be 
precedent.3  If  the  estate  is  vested  and  its  continuance  is  de- 
pendent on  the  performance  or  happening  of  certain  condi- 
tions, the  condition  is  subsequent.4 

No  particular  words  are  necessary  to  create  an  estate  upon 
condition.  Any  language,  from  which  the  intention  to  impose 
conditions  clearly  appears,  is  sufficient.5  The  terms  "on  condi- 


'Karcliner  vs.  Hay,  151  Pa.  St.,  383. 

Andrew  Karchner  and  wife  conveyed  unto  Charles  Shell  and  Cath- 
erine Shell,  his  wife,  their  heirs  and  assigns,  a  certain  tract  of  land. 
After  the  description  and  recital  of  title  follows  this  clause:  "It  is 
expressly  understood  by  all  the  parties  hereto  that  if  the  said  Charles 
Shell  and  Catherine,  his  wife,  should  have  a  child  or  children  of  their 
two  bodies  begotten  and  born,  then  the  land  herein  conveyed  shall  vest 
in  the  said  Charles  and  Catherine  and  their  heirs  forever.  But  should 
this  event  not  happen,  then  the  said  Charles  or  Catherine,  or  the  sur- 
vivor of  either  of  them,  shall  have  and  enjoy  a  life  estate  in  said  land." 

The  habendum  clause  of  the  deed  provided  that  grantees  should 
hold  the  land  for  themselves,  their  heirs  and  assigns  forever.  The  wife 
died  without  bearing  children,  and  a  creditor  of  the  husband's  con- 
tended that  under  the  deed  the  latter  and  his  wife  became  joint  owners 
in  fee,  and  that  on  the  death  of  the  wife  the  husband  became  the  sole 
owner. 

The  court  overruled  this  contention,  and  said:  "The  manifest  pur- 
pose of  the  special  clause  was  to  qualify  aud  limit  the  preceding  words 
of  inheritance.  *  *  *  The  event  upon  svhich  the  joint  estate  would 
have  been  enlarged  into  a  fee  simple  did  not  happen.  Indeed,  it  be- 
came impossible  by  the  death  of  Mrs.  Shell.  That  left  nothing  in  the 
surviving  husband  save  his  life  estate,  without  any  possibility  of  en- 
largement thereof. 

*Warner   vs.   Bennett,   31    Conn.,   468. 

A  deed  to  grantees,  their  heirs  and  assigns  forever,  for  cer- 
tain uses,  contained  the  following  provision:  "The  conditions  of 
the  within  deed  are  such  that  whenever  the  within  named  prem- 
ises shall  be  converted  to  any  other  use  than  those  within  named, 
and  the  within  grantee  shall  knowingly  persist  in  the  use  thereof  for 
any  other  purpose  whatever,  except  such*  as  are  described  in  the  within 
deed,  the  said  grantees  forfeit  the  right  herein  conveyed  to  the  within 
described  premises.  *  *  *  " 

The  court  says:  "In  case  of  a  condition  the  estate  or  thing  is  given 
absolutely  without  limitation,  but  the  title  is  subject  to  be  divested  by 
the  happening  or  not  happening  of  an  uncertain  event.  *  *  *  We 
think  it  clear  that  the  estate  of  grantee  was  an  estate  on  condition  in 
deed,  and  that  it  was  an  estate  upon  condition  subsequent." 

BCampau  vs.  Chene,  1  Mich.,  400. 


240  MANNER   OF    ENJOYMENT   OF    ESTATES. 

tion,''  "providing  always,"  "if  it  shall  happen,"  "if,"  are  most  fre- 
quently used  to  create  the  estate.  The  conditions  must  be 
attached  to  the  estate  at  the  time  of  its  creation;  but  the  con- 
dition may  be  contained  in  a  separate  instrument  executed  at 
the  same  time.6  It  is  sometimes  difficult  to  tell  from  the  lan- 
guage of  some  instruments  whether  it  was  intended  that  the 
condition  should  be  precedent  or  subsequent. 

In  construing  such  an  instrument,  the  courts  favor  the  vest- 
ing of  the  estate,  and  if  "the  act  or  condition  required  does 
not  necessarily  precede  the  vesting  of  estate,  but  may  accom- 
pany or  follow  it,  and  if  the  act  may  be  done  as  well  after  the 
vesting  of  the  estate  as  before,  the  condition  will  be  held  to 
be  subsequent."7 

WHEN  THE  CONDITION  IS  PBECEDENT  THE  GRANTEE 
MUST  STRICTLY  PERFORM  ALL  THE  CONDITIONS;  IF  HE 
FAILS  TO  DO  SO,  THE  ESTATE  WILL  NOT  VEST. 

WHEN  THE  CONDITION  IS  SUBSEQUENT  AND  THE  ES- 
TATE HAS  VESTED,  THE  NON-PERFORMANCE  OF  THE  CON- 
DITION WORKS  A  FORFEITURE  OF  THE  ESTATE,  AT  THE 
ELECTION  OF  THE  PERSON  ENTITLED  TO  ENTER  FOR  THE 
BREACH  OF  CONDITION.8 

Forfeitures  are  not  favored  by  the  law,  and  conditions  sub- 
sequent are  strictly  construed,  and  will  not  be  enforced  unless 
clearly  established.  The  rule  is  clearly  stated  in  Hageboom  vs. 
Hall,  as  follows:  "Conditions  which  destroy  an  estate  are  taken 
strictly;  and,  although  a  forfeiture  must  be  enforced  when, 
clearly  established,  it  should  not  prevail  on  a  doubtful  con- 
struction of  evidence.  If  anything  is  to  be  done  as  a  condition 

'Ritchie  vs.  Kansas  N.  &  D.  Ry.  Co.,  39  P.,  718. 
Admr.  vs.  Perkins  (Vt),  31  A.,  148. 

A  subsequent  deed  containing  conditions  has  no  effect.  Alemany 
vs.  Daly,  36  Gal.,  90. 

'Underbill  vs.  Saratoga  R.  R.  Co.,  20  Barb.,  459. 
Pennington  vs.  Pennington,  70  Md.,  418;  3  L.  R.  A.,  816. 
•Hayward  vs.  Kinney,  84  Mich.,  591. 


MANNER  OF   ENJOYMENT  OF   ESTATES.  241 

precedent  by  the  party  who  asserts  the  forfeiture,  he  must 
show  a  strict  performance  on  his  part ;  and  this  is  *o  whether 
the  obligation  upon  him  is  created  by  express  stipulation  or 
is  implied  by  the  law,  from  the  nature  of  the  act  to  be  per- 
formed, by  the  other  party.  He  who  may  lose,  by  a  breach  of 
a  condition,  must  be  plainly  put  in  the  wrong."9 

The  disfavor  with  which  the  courts  regard  forfeitures  is 
often  evidenced  in  their  inclination  to  construe  the  undertaking 
of  the  parties  to  be  a  covenant  or  trust,  the  breach  of  which 
does  not  involve  a  forfeiture.10 

A  CONDITION  PRECEDENT  MUST  BE  STRICTLY  PER- 
FORMED; A  CONDITION  SUBSEQUENT  MUST  BE  SUBSTAN- 
TIALLY PERFORMED. 

IF  THE  PERFORMANCE  OF  A  CONDITION  PRECEDENT  BE- 
COMES IMPOSSIBLE  BY  ACT  OF  GOD  OR  OF  LAW,  NO  ESTATE 
WILL  VEST. 


"Hogeboom  vs.  Hall,  24  Wend,  146. 

Waldron  vs.  Toledo  &  Ann  Arbor  R.  R.  Co.,  55  Mich.,  420. 
10Smith  vs.  Barrie,  56  Mich.,  314. 

Sumner  vs.  Darnell,  128  Ind.,  38;  13  L.  R.  A.,  173. 

Neely  vs.  Hoskins,  84  Me.,  386. 

Elyton  Land  Co.  vs.  South  Ala.  R.  Co.,  14  So.  Rep.,  207. 

Thornton    vs.    Trammell,    39    G«.,    2O2. 

A  conveyance  in  fee  simple  contained  the  clause:  "It  being  ex- 
pressly understood  by  the  parties  that  the  said  tract  or  parcel  of  land 
is  not  to  be  put  to  any  other  use  than  that  of  a  depot  square,  and  that 
no  business  or  improvements  are  to  be  put  on  said  tract."  The  ques- 
tion arose  as  to  whether  this  clause  was  a  condition  subsequent  in- 
volving a  forfeiture  of  the  grant,  or  a  covenant  for  the  breach  of  which 
the  remedy  must  be  an  action  for  damages.  The  court  interpreted 
the  clause  to  be  a  covenant,  and  said:  "The  conveyance  itself  is  an 
unqualified  grant  of  laud  to  the  grantee.  The  words  of  the  grantor  in 
conveying  the  land  impose  no  conditions  upon  the  latter,  which  would 
be  compulsory  to  do  any  act  whateATer.  *  *  *  There  being  no  con- 
dition expressed  in  the  grant  of  the  land,  of  course  there  can  be  no 
forfeiture  of  the  grantee's  estate  therein  for  condition  broken.  If  the 
covenant  of  the  grantee  has  been  broken,  the  plaintiff  has  an  adequate 
remedy  by  an  action  thereon  to  recover  damages." 

See  also  Granger  vs.  Granger,  147  Ind.,  95;  36  L.  R.  A.,  186,  190. 


242  MANNER   OF   ENJOYMENT   OF   ESTATES. 

OR,  BY  ACT  OF  GOD  OB  BY  LAW,  OB  THBOUGH  ANY  OTHEB 
CAUSE  ESXEPT  THE  ACT  OF  THE  GBANTEE,  THE  GBANTEE'S 
ESTATE  BECOMES  ABSOLUTE. 

Thus,  where  land  was  devised  upon  condition  subsequent 
that  the  devisee  should  support  a  third  person  named  in  the 
devise,  and  such  third  person  died  during  the  life  of  the  testa- 
tor, it  was  held  that  the  condition  became  impossible  by  act  of 
God,  and  that  the  devisee  took  an  absolute  estate.11 

A  case  in  which  the  performance  of  the  condition  became 
impossible  by  act  of  law  will  be  found  in  the  note.12 

The  favor  which  the  law  shows  to  the  owner  of  an  estate 
on  condition  subsequent,  in  order  that  his  estate  may  not  be 
forfeited,  is  evidenced  in  one  other  class  of  cases. 

As  has  been  stated,  the  failure  to  perform  a  condition  pre- 
cedent prevents  the  vesting  of  an  estate;  but  the  failure  to 
perform  a  condition  subsequent  does  not  necessarily  determine 
the  estate  to  which  it  is  attached. 

"Parker  vs.  Parker,  123  Mass.,  584. 

"Scovill      vs.    Me  Mali  <»ii,   62   Conn.,   37S;  21    I,.    It.   A.,   58. 

This  was  an  action  to  recover  $12,500  received  by  defendants  in  a 
proceeding  for  the  condemnation  of  a  cemetery,  the  right  to  which 
plaintiffs  alleged  reverted  to  them  upon  failure  of  defendants  to  use 
and  occupy  the  land  for  cemetery  purposes.  The  plaintiff's  ancestor, 
in  1847,  granted  the  property  on  the  express  condition  "that  the  above 
described  premises  are  to  be  used  and  occupied  for  the  purpose  of  a 
burying  ground,  and  no  other  purpose." 

In  1882  the  Legislature  of  Connecticut  passed  a  statute  providing 
that  it  should  be  unlawful  to  make  any  further  interments  in  said 
cemetery,  and  that  the  bodies  and  monuments  in  said  cemetery  might 
be  removed,  and,  on  compensation  to  the  persons  interested,  the  prop- 
erty might  be  condemned  for  the  purpose  of  establishing  a  public  park. 
The  property  was  condemned,  and  in  January,  1891,  a  decree  for  $12,- 
500  was  entered  in  favor  of  the  defendant  Bishop  McMahon  for  his 
interest. 

In  May,  1891,  one  of  the  plaintiffs  made  an  entry  for  condition 
broken,  and  subsequently  this  action  was  commenced.  The  court  held 
that  the  condition  subsequent  that  the  land  should  be  used  only  for 
cemetery  purposes  was  destroyed  when  the  further  use  of  the  property 
for  such  a  purpose  was  prohibited  by  law,  and  that,  the  condition  being 
defeated,  the  plaintiff  had  no  right  to  re-enter  or  to  any  part  of  the 
proceeds  of  the  property,  which  vested  in  the  defendant  free  from  con- 
ditions prior  to  the  condemnation  proceedings. 


MANNER   OF   ENJOYMENT   OF   ESTATES.  243 

IF  A  CONDITION  SUBSEQUENT  IS  NOT  PERFORMED,  THE 
ESTATE  GRANTED  DOES  NOT  TERMINATE  UNLESS  THE 
GRANTOR  OR  THE  PERSON  ENTITLED  TO  ENTER,  DOES  AC- 
TUALLY ENTER  OR  EOES  SOME  EQUIVALENT  ACT.13 

If  the  persons  entitled  to  enter  on  the  breach  of  the  condi- 
tion and  enforce  a  forfeiture  do  not  do  so,  the  grantee's  estate 
continues  and  is  good  against  every  one  except  those  entitled 
to  take  advantage  of  the  forfeiture.14 

The  persons  entitled  to  enter  for  breach  of  condition  may 
waive  their  right.  This  may  be  done  by  an  express  agree- 
ment, or  by  acts  consenting  to  or  accepting  a  subsequent  per- 
formance. 

A  CONDITION  PRECEDENT  MUST  BE  PERFORMED  AT  THE 
TIME  LIMITED  IN  THE  GRANT. 

A  CONDITION  SUBSEQUENT  MAY  FREQUENTLY  BE  PER- 
FORMED WITHIN  A  REASONABLE  TIME  AFTER  THE  TIME 
LIMITED  IN  THE  GRANT. 

In  case  of  a  grant  on  a  condition  subsequent,  if  by  the  terms 
of  the  grant  time  is  of  the  essence  of  the  grant,  the  condition 
must  be  performed  at  the  time  limited. 

THE  CONDITIONS  ATTACHED  TO  AN  ESTATE  MUST  BE 
VALID  AND  CAPABLE  OF  PERFORMANCE. 

Conditions  which  require  th^  performance  of  acts  which 
are  forbidden  by  law,  or  which  inhibit  the  performance  of  a 
duty  to  the  public  or  individuals,15  or  which  are  contrary  to 
public  policy,  or  which  are  repugnant  to  the  nature  of  the 
estate  granted,  are  invalid.10  Thus,  a  condition  that  the  grantee 

I3Ruch  vs.  Rock  Island,  97  U.  S.,  693.  , 

At  the  common  law  an  entry  was  necessary;  but  now  an  action  of 
ejectment  is  equivalent  to  an  entry.  No  entry  is  necessary  where 
grantor  is  in  possession.  See  Royal  vs.  Aultman-Taylor  Co.-,  116  Ind., 
424;  2  L.  R.  A.,  526. 

"Schulenberg  vs.  Harriman,  21  Wall.,  44. 
Boone  vs.  Clark,  129  111.,  466;  5  L.  R.  A.,  276. 

"Smith  vs.  Barrie,  56  Mich.,  314. 

"Haeussler  vs.  Missouri  Iron  Co.,  110  Mo.,  188;  16  L.  R.  A.,  220. 


244  MANNER   OF   ENJOYMENT  OF   ESTATES. 

should  commit  a  crime  would  be  invalid;  and  a  condition  to 
a  grant  of  an  estate  in  fee  simple  restraining  all  right  of  alien- 
ation would  be  contrary  to  the  nature  of  the  estate,  and  there- 
fore invalid.17  It  is  unnecessary  at  this  time  to  discuss  the 
effect  of  partial  restrictions  of  alienation. 

Another  instance  of  a  condition  repugnant  to  an  estate 
granted  arises  where  a  freehold  estate  in  land  is  granted  or  do- 
vised  on  condition  that  it  shall  not  be  subject  to  the  claim  of 
the  grantee's  or  devisee's  creditors;19  for  it  is  one  of  the  inci- 
dents of  such  an  estate  that  it  shall  be  subject  to  the  debts 
of  its  owner.20  Frequently  the  conditions  imposed  are  invalid, 
as  opposed  to  public  policy.21 

It  has  always  been  the  policy  of  the  law  to  encourage  mar- 
riage, aijd,  as  a  general  rule,  a  contract  in  restraint  of  mar- 
riage is  invalid.  A  condition  in  a  grant  of  land  to  a  single 
man  or  woman  that  he  or  she  does  not  marry  is  void. 

Conditions,  however,  which  are  not  total  restrictions  on 
marriage,  and  which  do  not  amount  to  a  general  restriction, 
are  valid.  Thus,  a  devise  to  testator's  son,  on  condition  that 
he  should  not  marry  a  particular  woman,  was  held  to  be 
valid.22  So,  a  restriction  on  marriage  for  a  reasonable  tune, 
for  instance,  during  minority,  is  valid.  As  a  general  rule,  a 
grant  or  devise  of  an  estate  by  a  husband  to  his  wife,  on  con- 
dition that  she  does  not  re-marry,  is  valid.23  A  contrary  rule 
prevails  in  Indiana. 

"Prey  vs.  Stanley,  110  Gal.,  423. 

"Wellington  vs.  Janvein,  60  N.  H.,  174. 

"But  see  Nichols  vs.  Eaton,  91  U.  S.,  716. 

"It  has  been  frequently  held  that  a  condition  that  the  grantee  shall 
not  sell  liquor  on  premises  is  not  contrary  to  public  policy  and  is  a 
valid  condition. 

Chippewa  Lumber  Co.  vs.  Tremper,  75  Mich.,  36. 

Cowell  vs.  Springs  Co.,  100  U.  S.,  55. 

"Graydon  vs.  Graydon,  23  N.  J.  Eq.,  229. 

23Knight  vs.  Mahoney,  152  Mass.,  523. 
Nash  vs.  Simpson,  78  Me.,  142. 


MANNER   OF   ENJOYMENT   OF   ESTATES.  245 

The  effect  of  an  invalid  condition,  or  a  condition  incapable 
of  performance,  depends  upon  whether  the  condition  is  prece- 
dent or  subsequent. 

IF  THE  CONDITION  IS  PRECEDENT  AND  IS  INVALID,  THE 
ESTATE  WILL  NOT  VEST.24 

IF  THE  CONDITION  IS  SUBSEQUENT  AND  IS  INVALID, 
THE  GRANTEE'S  ESTATE  IS  ABSOLUTE  AND  FREE  FROM 
SUCH  CONDITION. 

WHO  MAY  PERFORM  CONDITIONS. 

The  condition  may  be  performed  by  any  one  who  has  an 
interest  in  the  estate  to  which  the  condition  is  attached;  and 
any  one  accepting  the  estate  is  bound  to  perform  the  condi- 
tions attached  to  it.2K 

As  a  general  rule,  courts  of  equity  will  not  interfere  to  en- 
join a  forfeiture;  neither  will  they  enforce  a  forfeiture;  in  both 
cases  the  parties  will  be  left  to  their  legal  action.  If  the  for- 
feiture is  one  of  peculiar  hardship,  and  if  the  party  claiming 
the  forfeiture  cannot  be  fully  indemnified  by  damages,  courts 
of  equity  will  sometimes  interfere. 

CONDITIONAL  LIMITATIONS. 

In  the  case  of  an  estate  upon  condition  subsequent,  the 
grantor  conveys  to  his  grantee  an  estate  of  the  kind  desired, 
for  instance,  in  fee  or  for  life,  and  then  attaches  conditions 
which  may  determine  it  before  the  expiration  of  the  time  con- 
templated in  the  granting  clause. 

It  frequently  happens  that  the  grantor,  instead  of  granting 
the  full  estate  and  then  providing  for  the  forfeiture  of  part  of 
it,  merely  grants  an  estate  in  land  to  be  held  up  to  the  happen- 

"Taylor  vs.  Mason,  9  Wheat,  350. 
"Osgood  vs.  Abbott,  58  Me.,  73. 


246  MANNER   OF   ENJOYMENT   OF   ESTATES. 

ing  of  some  event  or  act;  such  an  estate  is  known  as  an  estate 
upon  conditional  limitation. 

The  distinction  between  a  condition  and  a  conditional  lim- 
itation is  pointed  out  by  Chancellor  Kent  as  follows :  "Words 
of  limitation  mark  the  period  which  is  to  determine  the  estate; 
but  words  of  condition  render  the  estate  liable  to  be  defeated 
in  the  intermediate  time,  if  the  event  expressed  in  the  condi- 
tion arises  before  the  determination  of  the  estate  or  comple- 
tion of  the  period  described  by  the  limitation.  The  one  specifies 
the  utmost  time  of  continuance,  and  the  other  marks  some 
event,  which,  if  it  takes  place  in  the  course  of  that  time,  will 
defeat  the  estate." 

If  a  man  devises  a  life  estate  to  his  wife  on  condition  that 
bhe  shall  not  marry  again,  the  wife  owns  a  life  estate 
which  may  be  defeated  by  her  marriage,  and  her  estate  is  on 
condition.  If  the  devise  is  to  the  wife  "during  her  widowhood" 
or  "as  long  as  she  shall  remain  single,"  the  time  during  which 
her  estate  shall  continue  is  limited,  and  the  words  "during  her 
widowhood"  or  "as  long  as  she  may  remain  single,"  are  words 
of  limitation  and  not  of  condition.26 


26First     Untversalist     Society     of    \dsuns    vs.    Bolaiid,    155    Mass.,    171; 
15  L,.  R.  A.,  231. 

Land  was  granted  to  plaintiff  to  have  and  to  hold  "so  long  as  said 
real  estate  shall  by  said  society  or  its  assigns  be  devoted  to  the  uses, 
interests  and  support  of  those  doctrines  of  the  Christian  religion  *  * 
*  and  when  said  real  estate  shall  by  said  society  or  its  assigns  be 
diverted  from  the  uses,  interests  and  support  aforesaid  to  any  other 
interests  *  *  *  then  the  title  of  said  society  or  its  assigns  in  same 
shall  forever  cease  and  be  forever  vested  in  the  following  persons,"  etc. 

In  an  action  to  enforce  specific  performance  of  a  contract  to  pur- 
chase said  land  by  defendant,  the  court  passed  upon  the  nature  of  the 
above  grant.  The  court  says:  "The  words  do  not  grant  an  absolute 
fee,  nor  an  estate  upon  condition,  but  an  estate  which  is  to  continue 
till  the  happening  of  a  certain  event,  and  then  cease.  That  event  may 
happen  at  any  time,  or  it  may  never  happen.  Because  the  estate  may 
last  forever,  it  is  a  fee.  Because  it  may  end  on  the  happening  of  the 
tvent,  it  is  what  is  usually  called  a  determinate  or  qualified  fee.  The 
grant  was  not  upon  a  condition  subsequent,  and  no  re-entry  would 
be  necessary;  but  by  the  terms  of  the  grant  the  estate  was  to  continue 


MANNER  OF   ENJOYMENT   OP   ESTATES.  247 

AN  ESTATE  UPON  A  CONDITIONAL  LIMITATION  IS  ONE 
WHICH  IS  GRANTED  TO  CONTINUE  UNTIL  THE  HAPPENING 
OF  SOME  CONTINGENT  EVENT. 

The  estate  is  frequently  created  by  the  use  of  some  of  the 
following  terms:  "Until,"  "during,"  "as  long  as,"  "while." 

The  difference  in  the  effect  of  a  conditional  limitation  from 
that  of  a  condition  subsequent  seems  to  lie  in  this:  in  the 
former  the  happening  of  the  future  event  ipso  facto  de- 
termines the  estate  without  any  entry  by  the  grantor,  or,  the 
person  entitled  to  enter,  while  in  case  of  an  estate  upon  con- 
dition subsequent,  there  must  be  a  re-entry  in  order  to  revest 
the  estate. 

A  conditional  limitation  does  not  involve  a  forfeiture  and 
is  regarded  with  more  favor  by  the  courts  than  conditions 
subsequent.  Thus,  a  devise  to  an  unmarried  woman,  as  long 
as  she  remains  single,  has  been  enforced  in  a  nurnber  of  in- 
stances as  a  conditional  limitation  by  courts  which  have  re- 
fused to  enforce  a  condition  subsequent  of  the  same  nature.27 
On  the  determination  of  an  estate  on  conditional  limitation 
the  property  reverts  to  the  grantor  or  passes  to  the  person  to 
whom  it  is  limited.28 


so  long  as  the  real  estate  should  be  devoted  to  the  specific  uses,  and 
when  it  should  no  longer  be  so  devoted,  then  the  estate  would  cease 
and  determine  by  its  own  limitation." 

In  this  case  the  defendant  refused  to  accept  the  title,  claiming  that 
the  plaintiff's  title  was  defective.  The  plaintiff  contended  that  it  was 
the  absolute  owner  of  the  premises,  because  the  limitation  was  void. 
The  court  held  that  the  estate  of  plaintiff  did  not  depend  upon  the 
validity  or  invalidity  of  the  limitation,  and  that  plaintiff's  estate 
expired  at  time  fixed  by  the  limitation,  whether  or  not  the  same  would 
have  been  void  for  other  purposes;  that  plaintiff's  estate  did  not 
become  absolute,  and  its  title  was  therefore  defective. 

"Summit  vs.  Yount,  109  Ind.,  506. 
Cowell  vs.  Springs  Co.,  100  U.  S.,  55. 

MFirst  Univ.  Society  of  North  Adams  vs.  Boland,  155  Mass.,  171. 


CHAPTER  VII. 

MORTGAGES. 

From  the  earliest  times,  the  title  to  land  has  been  given  as 
a  security  for  the  payment  of  money. 

The  earliest  form  of  such  security  seems  to  have  been  in 
the  nature  of  a  pledge,  under  which  the  person  loaning  the 
money  took  possession  of  the  land  and  retained  it  until  pay- 
ment ;  and  the  product  of  the  land  belonged  to  the  lender  as  & 
compensation  for  the  use  of  the  money,  and  did  not  apply  on 
the  principal.  In  the  process  of  time,  and  at  an  early  date, 
the  form  of  the  security  on  land  developed  into  two  distinct 
pledges,  known  as  vivum  vadium  and  mortuum  vadium. 

A  vivum  vadium,  or  living  pledge,  was  a  conveyance  of  an 
estate  to  be  held  until  the  rents  and  profits  should  repay  the 
sum  borrowed.  "In  this  case,"  says  Blackstone,  "the  land  or 
pledge  is  said  to  be  living;  it  subsists  and  survives  the  debt; 
and  immediately  on  the  discharge  of  that,  results  back  to  the 
borrower."1 

A  mortuum  vadium,  or  dead  pledge,  was  a  conveyance  of 
an  estate  in  land,  on  condition  that  it  should  be  void  if  the 
borrower  repaid  the  amount  borrowed  at  the  time  limited  in 
the  grant.  Such  a  grant  was  called  a  mortuum  vadium  (or 
dead  pledge),  because,  in  case  of  non-payment  at  the  stipulated 
time,  the  interest  of  the  borrower  became  forever  dead,  and 
the  conditional  estate  became  absolute  in  the  grantee.2 

'2  Blackstone,  156. 
•2  Blackstone,  158. 


MORTGAGES.  249 

The  term  mortgage  superseded  that  of  mortuiim  vadium; 
and  the  borrower  was  called  the  mortgagor,  and  the  lender, 
the  mortgagee. 

AT  THE  COMMON  LAW,  THEN,  A  MOBTGAGE  IS  A  CON- 
VEYANCE OF  AN  ESTATE  IN  LAND,  AS  A  SECURITY,  ON  CON- 
DITION THAT  IF  THE  MORTGAGOR  PERFORMS  THE  CONDI- 
TION OF  THE  MORTGAGE  AT  THE  TIME  LIMITED,  THE 
ESTATE  IS  DEFEATED;  AND  ON  THE  FAILURE  OF  THE  MORT- 
GAGOR TO  PERFORM  THE  CONDITION  AT  THE  TIME  STIPU- 
LATED, THE  ESTATE  BECOMES  ABSOLUTE  IN  THE  MORT- 
GAGEE. 

This  common  law  definition  must  not  be  accepted  by  the 
student  as  a  complete  definition  of  a  mortgage  at  the  present 
time;  for,  as  we  shall  afterwards  see,  the  term  "mortgage"  is 
now  applied  to  instruments  in  many  different  forms  which  do 
not  convey  any  estate  at  all,  and  which,  create  mere  liens  on 
real  property. 

At  the  common  law  the  mortgagee  became  the  owner  of  the 
fee,  and  the  condition  on  which  his  estate  was  liable  to  be  de- 
termined, i.  e.,  repayment  of  the  loan,  was  in  the  nature  of  a 
condition  subsequent.  We  have  seen  that  conditions  subse- 
quent, since  they  involve  the  forfeiture  of  an  estate,  are  not 
favored  and  are  strictly  construed. 

The  common  law  courts  applied  these  legal  rules  to  mort- 
gages, and,  on  the  failure  of  the  mortgagor  to  make  the  pay- 
ment on  the  day  limited  in  the  mortgage,  the  estate  became 
absolute  in  the  mortgagee,  and  the  mortgagor  had  no  legal 
remedy  to  recover  any  surplus  value  of  land  over  the  amount 
borrowed;  neither  could  the  mortgagor  after  the  time  fixed 
for  payment,  at  law,  compel  the  mortgagee  to  accept  the 
amount  due  and  discharge  the  mortgage. 

Against  the  severity  of  the  law,  courts  of  equity  inter- 
posed ;  they  looked  upon  the  intention  of  the  parties,  "and  re- 


250  MORTGAGES. 

garded  a  mortgage  as  a  mere  security  for  the  debt  or  obliga- 
tion of  the  mortgagor. 

Forfeiture,  as  a  result  of  a  breach  of  condition,  was  re- 
garded in  equity  as  a  penalty;  and  the  rule  was  established 
that  the  mortgagor,  after  default,  should  have  a  reasonable 
time  to  recall  or  redeem  his  estate  by  payment  of  the  prin- 
cipal and  interest  of  the  debt  and  costs.  This  right  to  redeem 
was  not  an  estate  in  the  land,  but  was  a  mere  equity  and  was 
called  an  equity  of  redemption. 

The  effect  of  this  equitable  rule  was  not  to  alter  the  estate 
of  the  mortgagee;  for  he  was  still  seized  of  an  estate  on  con- 
dition; nor  did  the  equitable  rule  prevent  the  vesting  of  an 
absolute  estate  after  breach  of  condition.  Equity  simply  pro- 
vided a  remedy  by  which  the  mortgagor  after  default  might 
redeem  his  estate.  This  doctrine  of  equity  of  redemption  be- 
came firmly  established  in  the  reign  of  James  I. 

The  common  law  theory  of  a  mortgage,  viz.,  that  it  is  a 
conveyance  of  a  conditional  estate,  together  with  the  general 
equitable  doctrine,  that  after  default  the  mortgagee  shall  have 
an  equity  of  redemption,  has  been  substantially  adopted  by  a 
number  of  States.4 

It  is  not  meant  by  this  statement  that  the  common  law  rule 
and  its  harsh  consequences  have  been  adopted  in  toto;  but 
simply  that  the  general  common  law  theory  as  to  the  nature 
of  a  mortgage  has  been  adopted.  We  shall  afterwards  see 
that  many  of  the  States,  while  adopting  that  theory,  do  not 
adopt  all  of  its  logical  consequences;  and,  while  they  regard 
the  mortgagee  as  the  owner  of  an  estate,  he  has  now  few  of 
the  incidents  pertaining  to  ownership. 

4This  rule  prevails  in  Alabama,  Connecticut,  Indiana,  Massachu- 
setts, Minnesota,  Missouri,  New  Hampshire,  North  Carolina,  Rhode 
Island  and  Vermont. 


MORTGAGES.  251 

Many  States  have  repudiated  the  common  law  theory  and 
have  adopted  the  more  equitable  rule. 

In  the  latter  States,  a  mortgage  may  be  defined  as  follows : 

A  MORTGAGE  IS  A  LIEN  ON  LAND  TOR  THE  PURPOSE  OF 
SECURING  THE  PAYMENT  OF  A  DEBT  OR  OTHER  OBLIGA- 
TION. 

Under  this  theory,  a  mortgage  does  not  convey  any  title 
to  the  property;  the  legal  title  remains  in  the  mortgagor,  even 
after  default,  and  passes  from  him  only  on  foreclosure.5 

FORM  OF  MORTGAGES. 

At  the  common  law,  a  mortgage  was  in  the  form  of  a  con- 
veyance of  land  with  a  defeasance  clause,  that,  on  performance 
of  the  condition  as  to  payment,  the  estate  granted  should  be 
void,  or,  with  a  provision  that  on  payment  at  the  time  limited 
in  the  mortgage,  the  mortgagee  should  re-convey  the  premises.8 
A  mortgage  in  this  form  is  said  to  be  a  common  law  mortgage. 

This  common  law  form  is  in  use  in  many  of  the  States,  in- 
cluding some  States  in  which  a  mortgage  is  not  a  conveyance, 
but  a  lien.  It  was  quite  a  common  practice  to  convey  an  abso- 
lute estate  by  one  instrument,  and  execute  a  defeasance  clause 
in  a  separate  writing.7 

In  some  States,  statutes  have  been  passed  providing  that  a 
certain  form  may  be  used,  and  indicating  the  method  of  exe- 
cution, etc. 

"The  lien  theory  as  to  mortgages  prevails  in  substance  in  the  fol- 
lowing States:  Michigan,  New  York,  Georgia,  California,  Indiana, 
Iowa,  Kansas,  Louisiana,  Texas,  South  Carolina,  Wisconsin,  Dakota, 
Utah  and  Washington. 

Delaware,  Mississippi  and  Missouri  adopt  the  lien  theory,  but  after 
default  of  mortgagor,  possession  by  mortgagee  vests  an  estate  in  the 
latter. 

'The  defeasance  is  usually  as  follows:  "Provided  always,  and 
these  presents  are  upon  the  express  condition  that  if  the  party  of  the 
flrst  part  shall  and  do  well  and  truly  pay  unto  party  of  second  part 

the  sum  of  dollars,  with  interest  at  the  rate  of  per 

cent,  per  annum,  according  to  the  tenor  of  a  certain  promissory  note 
bearing  even  date  herewith,  and  to  which  these  presents  are  collateral, 
then  these  presents  and  said  promissory  note  shall  be  null  and  void." 

'Ferris  vs.  Wilcox,  51  Mich.,  105. 


252  MORTGAGES. 

As  a  general  rule,  in  most  States  no  particular  form  is 
necessary  to  create  a  valid  mortgage.  Any  instrument  from 
which  it  appears  that  the  parties  intended  to  convey  an  estate 
in  or  create  a  lien  on  definite  real  estate  for  the  purpose  of  se- 
curing the  payment  of  a  debt  or  the  performance  of  an  obliga- 
gation,  is  sufficient,  if  properly  executed,  to  constitute  a  mort- 
gage. 

A  mortgage  in  any  of  the  forms  mentioned  is  a  legal  mort- 
gage. 

A  LEGAL  MOBTGAGE  MAY  BE  THEBEFOBE  DEFINED  AS 
AN  INSTBUMENT  OB  INSTBUMENTS  IN  WHICH  THE  PAB- 
TIES  HAVE  EXPBESSED  THEIB  INTENTION  EITHEB  TO 
CONVEY  AN  ESTATE  IN  LAND  OB  CBEATE  A  LIEN  ON  LAND 
AS  A  SECUBITY,  AND  WHICH  INSTBUMENT  HAS  ALL  THE 
ESSENTIALS  AND  IS  EXECUTED  WITH  ALL  FOBMALITIES 
BEQUIBED  BY  LAW. 

It  frequently  happens,  however,  that  the  parties,  while 
they  intend  to  create  a  mortgage,  yet  fail  to  express  such  in- 
tention, or,  if  it  is  expressed,  fail  to  execute  the  instrument  in 
the  manner  required  by  law.  In  reference  to  such  instruments 
or  agreements,  equity  in  its  desire  to  carry  out  the  intention 
of  the  parties,  gives  them  the  effect  of  mortgages. 

AN  EQUITABLE  MOBTGAGE,  THEN,  IS  AN  AGBEEMENT  IN- 
TENDED TO  OPEBATE  AS  A  SECUBITY  ON  LAND,  BUT  WHICH 
FAILS  TO  EXPBESS  SUCH  INTENTION,  OB  WHICH  LACKS, 
EITHEB  IN  FOBM  OB  EXECUTION,  THE  ESSENTIALS  OF  A 
LEGAL  MOBTGAGE,  AND  WHICH  AGBEEMENT  IS,  IN  EQUITY, 
GIVEN  THE  EFFECT  OF  A  MOBTGAGE.8 

The  intention  to  create  a  security  may  be  inferred  from 
many  different  agreements;  and  there  are,  therefore,  many 
different  kinds  of  equitable  mortgages.  We  will  briefly  call 
attention  to  a  few  of  the  most  common  equitable  mortgages. 

'Atkinson  vs.  Miller,  34  W.  Va.,  115,  9  L.  R.  A.,  544. 


MORTGAGES.  253 

1.     AN  ABSOLUTE  DEED  INTENDED  TO  OPERATE  AS  A  SECUR- 
ITY, WILL  IN  EQUITY  BE  HELD  TO  BE  A  MORTGAGE. 

It  early  became  a  practice  on  the  part  of  borrowers,  for  the 
purpose  of  securing  the  repayment  of  a  loan,  to  make  an  abso- 
lute conveyance  of  the  estate,  without  any  defeasance  clause, 
either  in  the  instrument  containing  the  grant,  or  in  a  separate 
instrument.  Without  discussing  the  development  of  the  doc- 
trine, it  may  be  said  that  an  absolute  conveyance,  intended  as 
a  security,  is  given  the  effect  of  a  mortgage  in  equity.9 

PABOL  EVIDENCE  IS  ADMISSIBLE,  IN  EQUITY,  TO  SHOW 
THAT  A  DEED  ABSOLUTE  ON  ITS  FACE  WAS  INTENDED  TO 
OPERATE  AS  A  MORTGAGE. 

While  this  is  the  rule,  the  courts  differ  as  to  the  reason  of 
the  rule.  The  admission  of  parol  evidence  to  show  the  inten- 
tion of  the  parties  in  this  class  of  cases  is  not  regarded  as  a 
violation  of  the  rule  that  parol  evidence  is  inadmissible  to 
vary  the  terms  of  a  written  instrument. 

The  attempt  of  a  grantee  to  set  up  his  deed  as  absolute 
when  it  was  intended  only  as  security,  is  a  fraud  on  the  rights 
of  the  grantor,  and  equity  in  its  jurisdiction  over  frauds  is  not 
precluded  from  making  an  inquiry  as  to  whether  or  not  a  fraud 
has  been  committed  by  the  legal  rule  as  to  admission  of  parol 
evidence.  In  some  states  parol  evidence  will  be  admitted  only 
in  those  cases  in  which  the  defeasance  clause  was  omitted  by 
mistake  or  fraud  at  the  time  of  the  execution  of*  the  grant.10 

In  most  States,  however,  parol  evidence  will  be  admitted  in 
cases  in  which  there  was  no  fraud  at  the  time  of  the  execution 
of  the  deed,  and  where  the  only  fraud  consists  in  the  attempt 
to  use  the  deed  contrary  to  the  intention  of  the  parties. 

"Sun  Fire  Office  vs.  Clark,  53  Ohio  St.  414;  38  L.  R.  A.,  562. 
10Brainerd  vs.  Brainerd,  15  Conn.,  575. 
Price  vs.  Gover,  40  Md.,  102. 


254  MORTGAGES. 

WHEN  THE  DEED  IS  ABSOLUTE  ON  ITS  FACE,  THE  PRE- 
SUMPTION IS  THAT  AN  ABSOLUTE  CONVEYANCE  WAS  IN- 
TENDED; AND,  IN  ORDER  TO  REBUT  THIS  PRESUMPTION, 
CLEAR,  UNEQUIVOCAL  AND  CONVINCING  PROOF  WILL  BE 
REQUIRED,  THAT,  AT  THE  TIME  THE  DEED  WAS  GIVEN,  IT 
WAS  THE  INTENTION  OF  THE  PARTIES  THAT  IT  SHOULD 
OPERATE  AS  A  SECURITY." 

The  burden  of  proof  is  on  the  party  who  alleges  that  the 
deed  is  a  mortgage.12  If  the  deed  at  the  time  it  was  delivered 
was  intended  to  be  absolute,  it  must  always  remain  so,  and  it 
cannot  be  affected  by  any  subsequent  parol  agreement.13 

While  the  law  on  this  subject  is  well  settled,  it  is  often  dif- 
ficult to  determine  what  was  the  actual  intention  of  the  parties. 

In  arriving  at  the  actual  agreement  and  intention  of  the 
parties,  the  courts  take  into  consideration  the  following  cir- 
cumstances : 

IF  THE  DEED  IS  TO  BE  HELD  TO  BE  A  MORTGAGE  IT  MUST 
APPEAR  THAT  AT  THE  TIME  IT  WAS  EXECUTED,  THE  RE- 
LATION OF  DEBTOR  AND  CREDITOR  EXISTED  BETWEEN  THE 
PARTIES. 

If  there  is  no  indebtedness,  the  deed  cannot  be  given  as  a 
security  for  its  payment.14  So,  if  money  is  paid  to  the  grantor, 
not  as  a  loan,  but  as  a  part  of  the  purchase  price,  or  if  a  prev- 
ious debt  between  the  parties  is  extinguished  by  the  convey- 
ance, the  transaction  will  not  be  held  to  be  a  mortgage.15 

THE  FACT  THAT  THE  AMOUNT  PAID  THE  GRANTOR 
IS  CONSIDERABLY  LESS  THAN  THE  VALUE  OF  THE  PROP- 
ERTY, IS  EVIDENCE  TENDING  TO  ESTABLISH  THE  CLAIM 
THAT  THE  TRANSACTION  WAS  INTENDED  AS  A  MORTGAGE. 

"Cadman  vs.  Peter,  118  U.  S.,  73. 
"Tilden  vs.  Streeter,  45  Mich..  533. 
"Swetland  vs.  Swetland,  3  Mich.,  482. 
"Riley  vs.  Starr  (Neb.),  67  N.  W.,  187. 

McMillan  vs.  Bissell,  63  Mich.,  66. 
"Swetland  vs.  Swetland,  3  Mich.,  482. 


MORTGAGES.  255 

If  the  grantor  receives  the  full  value,  or  nearly  the  full 
value,  of  his  property,  this  fact  will  tend  to  support  the  claim 
that  the  transaction  was  an  absolute  transfer,  and  not  a  se- 
curity. 

THE  RETENTION  OF  THE  POSSESSION  BY  THE  GRANT  - 
OB,  IF  UNEXPLAINED,  IS  A  CIRCUMSTANCE  TENDING  TO 
SHOW  THAT  THE  INTENTION  WAS  TO  MORTGAGE,  AND  NOT 
TO  SELL. 

The  rule  as  to  admission  of  parol  evidence,  applies  only 
to  the  parties  making  the  deed,  and  to  third  parties  having 
notice  of  the  real  nature  of  the  transaction.  If  a  third  person 
in  good  faith  purchases  the  property  from  the  grantee  in 
possession  without  notice  of  the  parol  agreement,  parol  evi- 
dence will  not  be  admitted  to  defeat  or  qualify  his  title.16 

2.  ABSOLUTE  DEED  AND  CONTRACT  FOR  RECONVEYANCE. 

Frequently  the  payment  of  money  is  secured  by  an  absolute 
conveyance  and  a  contract  or  bond  executed  at  the  same  time, 
or  at  different  times,  when  a  part  of  the  same  transaction, 
whereby  the  grantee  agrees  to  reconvey  the  property  on  the 
payment  of  amount  borrowed. 

For  instance,  A,  the  owner  of  certain  land,  desires  to  raise 
$1,000,  and,  instead  of  executing  a  mortgage  on  it  for  that 
amount  to  B,  the  person  advancing  the  money,  he  executes 
an  absolute  deed  of  the  property  to  B,  and  B  at  the  same  time 
enters  into  an  agreement  to  resell  and  reconvey  the  property 
to  A,  on  the  payment  of  $1,000,  with  interest. 

Such  a  transaction  is  an  equitable  mortgage,  and  entitles 
the  grantor  to  an  equity  of  redemption.17 

The  giving  of  a  deed  and 'a  contract  of  re-purchase,  if  not 
for  the  purpose  of  securing  a  loan  or  payment  of  an  indebted- 

"Mooney  vs.  Byrne,  37  N.  Y.  S.,  388. 

Crane  vs.  Buchanan,  29  Ind.,  570. 
"Jeffery  vs.  Hursh,  58  Mich.,  246. 


256  MORTGAGES. 

ness,  will  vest  an  absolute  estate  in  the  grantee,  subject  to 
the  agreement  to  resell,  and  the  vendee  in  such  a  contract  is 
not  entitled  to  an  equity  of  redemption,  but  only  to  his  remedy 
for  a  breach  of  the  agreement  to  re-sell. 

It  is  sometimes  difficult  to  determine  whether  an  absolute 
conveyance  and  an  agreement  to  repurchase  is  a  mortgage  or  a 
conditional  sale.  As  a  general  rule,  in  doubtful  cases,  the 
court  will  lean  to  the  conclusion  that  a  security,  rather  than  a 
conditional  sale,  was  intended.18  But,  if  it  satisfactorily  ap- 
pears that  a  conditional  sale  was  intended,  the  transaction 
must  retain  the  stamp  which  the  parties  themselves  have 
given  it.19 

As  in  the  case  of  an  absolute  deed  with  a  parol  defeasance, 
the  surrounding  circumstances  may  be  of  great  assistance  in 
determining  what  was  the  real  intention  of  the  parties.  It 
is  as  necessary  in  the  case  of  a  contract  to  re-purchase,  as  in 
the  case  of  an  absolute  deed,  that  the  relationship  of  debtor 
and  creditor  should  exist  between  the  parties  if  the  transac- 
tion is  to  be  held  a  mortgage.20 

3.     TRUST  DEEDS. 

Sometimes  the  party  borrowing  the  money,  instead  of  giv- 
ing a  deed  directly  to  the  lender,  conveys  the  property  to  a 
trustee,  to  be  held  in  trust,  to  secure  the  person  advancing 
the  money  and  to  re-convey  the  property  to  the  borrower  on 
the  payment  of  the  debt.  When  a  deed  of  trust  is  made  for 
the  purpose  of  securing  a  continuing  debt,  it  will  be  treated 
in  equity  as  a  mortgage.21 

"Gassert  vs.  Bogk,  7  Mont.,  585;  1  L.  R.  A.,  240. 
"Cornell  vs.  Hall,  22  Mich.,  377. 

Co  well  vs.  Craig,  79  Fed.,  685. 
*>Doying  vs.  Chesebrough  (N.  J.  Ch.),  36  A.,  893. 

Saxton  vs.  Hitchcock,  47  Barb.  (N.  Y.),  220. 
"Brantley  vs.  Wood,  97  Ga.,  755. 

Marshall  vs.  Thompson,  39  Minn.,  137. 


MORTGAGES.  257 

The  rules  as  to  necessity  of  an  indebtedness  and  the  method 
of  arriving  at  intention  of  parties  in  case  of  an  absolute  deed, 
are  applicable  to  the  case  of  a  trust  deed. 

4.     AGREEMENTS   TO   GIVE  A   MORTGAGE,   AND   MORTGAGES 
LACKING  SOME  LEGAL  ESSENTIAL  OR  FORMALITY. 

It  is  a  maxim  that  equity  will  regard  as  performed,  that 
which  ought  to  be  performed.  This  maxim  is  frequently  ap- 
plied in  those  cases  in  which,  for  a  consideration,  there  has 
been  an  agreement  to  give  a  mortgage  on  definite  property, 
and  a  failure  for  some  reason  to  carry  out  the  agreement. 
Equity  will,  in  such  a  case,  give  effect  to  the  agreement  and 
establish  a  lien  on  the  property.22  For  the  same  reason,  when 
the  parties  have  attempted  to  execute  a  mortgage,  but  failed 
to  have  it  properly  executed,  or  omitted  some  of  the  legal  es- 
sentials, it  will  be  given  the  effect  of  a  mortgage  in  equity.28 

^Osgood  vs.  Osgoocl,  78  Midi.,  29O. 

In  this  case  a  bill  was  filed  to  secure  a  lien  on  certain  real  estate 
for  money  advanced  by  Hiram  C.  Osgood  to  his  father,  Isaac  Osgood. 
Shortly  after  money  was  advanced,  Hiram  C.  Osgood  died,  and  on  the 
refusal  of  defendants  to  account  for  the  money  received,  this  action 
was  commenced  by  the  wife  and  children  of  Hiram  C.  Osgood.  The 
court  in  holding  that  a  decree  should  be  entered  in  favor  of  com- 
plainant said: 

"The  testimony  in  the  case  convinces  us  that  the  deceased,  when 
he  let  his  father  have  the  money  to  aid  him  in  building  the  store,  did  not 
intend  to  give  it  to  his  father,  but  it  was  furnished  by  the  son  with 
the  understanding  that  it  was  in  some  manner  to  be  secured  for  him 
in  the  store  and  fot,  or  for  his  children,  and  that  it  was  his  intention, 
when  he  left  his  home  at  L'Anse,  to  visit  his  father  at  Jackson,  to 
have  a  settlement  with  him.  and  conclude  the  matter,  and  he  took 
all  his  papers  with  him  relating  to  that  business.  The  correspondence 
between  the  father  and  son  all  tends  to  show  these  facts.  *  *  *  We 
all  think  there  should  be  a  reversal  of  the  decree  at  the  circuit,  and 
a  new  decree  entered  in  favor  of  complainants,  giving  to  them  a  lien 
upon  said  store  and  lot,  thereby  securing  to  them  the  payment  of  the 
sum  of  $2,700,  with  annual  interest  thereon  at  the  rate  of  0  per  cent." 

See  also  case  of  Bridgeport  Electric  <fc  Ice  Co.  vs.  Meader,  72  Fed.,* 
115. 

^Atkinson  vs.  Miller,  34  W.  Va.,  115;  9  L.  R.  A.,  544. 
Martsarum  vs.  Christie  Orange  Co.  (Fla.),  19  So.,  637. 
Daggett  vs.  Raukin,  31  Cal..  321. 


258  MORTGAGES. 

Tims,  mortgages  which  omit  the  name  of  the  mortgagee, 
or  which  are  improperly  sealed  or  witnessed,  have  been  given 
effect  in  equity.24 

5.  OTHER  AGREEMENTS. 

Equity  will  give  effect  to  any  written  agreement,  whatever 
its  form  from  which  the  intent  to  pledge  land  as  a  security  can 
be  gathered,  and  this  is  true,  even  though  the  agreement  does 
not  purport  to  convey  a  title  or  create  a  lien.25 

6.  DEPOSIT  OP  TITLE  DEEDS. 

Another  form  of  equitable  mortgage  in  England,  and  a  few 
of  the  States,  is  that  created  by  the  deposit  of  title  deeds  as  a 
security.  In  England,  such  a  deposit  will  operate  as  a  security 
on  the  land  described  in  the  deeds.  In  this  country,  by  reason 
of  the  system  of  registering  titles,  the  deposit  of  title  deeds 
does  not  usually  create  an  equitable  mortgage. 

In  a  few  States  the  English  rule  prevails.26 

7.  VENDOR'S  LIEN. 

One  of  the  most  important  equitable  liens  is  that  of  a  ven- 
dor for  the  unpaid  portion  of  the  purchase  price.  This  lien 
differs  from  other  equitable  liens  discussed,  in  that  it  is  not 
the  result  of  an  actual  agreement,  but  arises  from  inference 
or  implication.27 

It  was  early  settled  in  the  English  Chancery  courts  that  a 
vendor  should  have  a  lien  on  the  land  conveyed,  for  the  amount 
of  the  purchase  price  unpaid.28  In  many,  if  not  most  of  the 

"Atkinson  vs.  Miller,  34  W.  Va.,  115;  9  L.  R.  A.,  544. 

McQuie  vs.  Peay,  58  Mo.t  56. 

Gardner,  Dexter  &  Co.  vs.  Moore,  51  Ga.,  268. 

28New  Vienna  Bank  vs.  Johnson,  47  Ohio  St.,  306;   8  L.  R.  A.,  614. 
26Mounce  vs.  Byars,  31  Cal.,  321. 

Hall  vs.  McDuff.  24  Me..  311. 

Hackett  vs.  Watts,  40  S.  W.  (Mo.),  113. 
''White  vs.  Downs,  40  Tex.,  225. 
"Gessner  vs.  Palmateer,  89  Cal.,  89;  13  L.  R.  A.,  187. 
This  rule  is  not  adopted  in  all  states. 
See  Frame  vs.  Sliter,  29  Or.,  121;  34  L.  R.  A..  COO. 


MORTGAGES.  259 

States,  a  lien  exists  in  favor  of  the  vendor;  but  the  courts  differ 
not  only  as  to  the  reason  of  the  lien,  but  also  as  to  its  opera- 
tion and  effect.29  It  is  unnecessary  in  a  book  of  this  character 
to  enter  into  the  discussion  of  many  of  the  questions  relating 
to  this  lien.  The  early  judges  seem  to  have  treated  the  lien  as 
an  implied  agreement  between  the  parties,  unless  the  con- 
trary appeared  that  the  vendor  should  not  have  a  lien. 

This  reasoning  has  been  criticised  as  being  contrary  to  the 
actual  intention  of  the  parties.  Other  courts  reason  that  an 
estate  acquired  without  full  payment  is  unconscionable  and 
contrarvr  to  natural  equity,  and  that  a  lien  ought  to  be  given 
the  vendor.30  This  reasoning  is  criticised  by  other  courts,  in 
that  the  principle,  on  the  same  reasoning,  ought  to  extend  to 
the  sales  of  personal  property,  which  it  does  not. 

Most  of  the  courts  base  their  ruling  giving  the  vendor  a 
lien,  on  the  fact  that  it  would  be  unconscionable  on  the  part 
of  the  purchaser  to  hold  the  land  without  paying  for  it,  and, 
if  he  does  hold  it,  a  trust  ought  to  arise  in  favor  of  the  vendor. 

The  lien  is  then  regarded  as  a  holding  in  trust  by  the 
vendee  for  the  benefit  of  the  vendor. 

The  trust,  however,  is  a  secret  one,  and  will  not  be  en- 
forced, to  the  injury  of  an  innocent  bona  fide  purchaser  for 
value,  without  notice  that  the  purchase  price,  or  any  portion 
of  it,  is  unpaid.31  But  it  may  be  enforced  against  all  subse- 
quent purchasers  with  notice  that  the  purchase  money  is  not 
paid,  and  against  all  transferees  or  grantees  who,  while  they 


"The  lien  exists  in  the  following  States:  Arkansas,  California, 
Colorado,  Florida,  Indiana,  Illinois,  Iowa,  Kentucky,  Maryland,  Michi- 
gan, Minnesota,  Missouri,  Mississippi,  New  Jersey,  Nevada,  New  York, 
Oregon,  Rhode  Island,  Tennessee,  Texas  and  Wisconsin. 

s°H5scock  vs.  Norton,  42  Mich.,  320. 

31Cowan  vs.  Murch,  97  Tenn.,  590. 

A  purchaser  without  consideration  takes  the  property  subject  to 
the  lien. 

Higsins  vs.  Kendall,  73  Ind.,  522. 


260  MORTGAGES. 

have  no  notice  of  such  fact,  have  not  parted  with  any  consid- 
eration. 

The  courts  differ  as  to  whether  a  vendor's  lien  will  prevail 
as  against  an  execution  creditor  without  notice;  the  weight  of 
authority  is  that  it  will  not.32 

As  has  been  stated,  it  is  not  necessary  to  prove  an  actual 
agreement  that  the  vendor  shall  have  a  lien;  for  it  will  be  pre- 
sumed, from  the  sale  of  the  property,  and  the  fact  that  a  por- 
tion of  the  purchase  price  is  unpaid,  that  a  lien  in  favor  of  the 
vendor  was  intended.33  This  presumption  may  be  rebutted  or 
waived  by  the  actions  of  the  vendor.  The  vendor,  by  accept- 
ing other  security,  as  a  mortgage,  and,  in  most  States,  the  ac- 
ceptance of  an  endorsed  note  or  guaranty  of  a  third  person, 
will  waive  the  lien.34 

The  reasoning  of  the  cases  holding  that  such  an  acceptance 
is  a  waiver  of  the  vendor's  liens,  seems  to  be  that  the  vendor 
by  taking  the  security  of  a  third  person  agrees  not  to  rely  upon 
his  lien.  The  taking  of  a  note,  not  endorsed  or  guaranteed  by 
a  third  person,  will  not  amount  to  a  waiver  of  lien.35 

There  is  a  difference  of  opinion  as  to  whether  the  vendor 
can  assign  the  right  to  the  lien  to  the  transferee  of  his  claim. 

Most  courts  hold  that  the  lien  is  personal  and  that  an  as- 
signment cannot  be  made.cc  If,  however,  an  express  lien  is  re- 
served to  the  grantor,  it  may  be  assigned,  and  will  pass  by  a 
transfer  of  the  purchase  money  obligation.37 

uAllen  vs.  Loring,  34  Iowa,  499. 

"Cowan  vs.  Murch,  97  Tenn.,  590. 

"Robbins  vs.  Masteller  (Ind.),  46  N.  E.,  330. 

"Knight  vs.  Knight,  Ala.,  21  So.,  407. 

"Law  vs.  Butler,  44  Minn.,  482;  9  L.  R.  A.,  856. 

Bell  vs.  Pelt,  51  Ark..  433;  4  L.  R.  A.,  247. 

Martin  vs.  Martin,  164  111.,  640. 

Contra.,  Dickason  vs.  Fisher  (Mo.),  37  S.  W.,  1114. 
37Xashville  Trust  Co.  vs.  Smythe,  94  Tenn.,  513;  27  L.  R.  A.,  663. 


MORTGAGES.  261 

8.     VENDEE'S  LIEN. 

A  vendee,  under  some  circumstances,  has  a  lien  on  the  land 
purchased.  If  the  vendee  makes  payments  on  the  purchase 
price  and  the  vendor  subsequently  refuses  to  carry  out  the 
provisions  of  the  contract,  the  vendee,  as  against  his  vendor,  is 
entitled  to  a  lien  on  the  land  for  the  amount  paid,  together 
with  the  value  of  improvements  he  has  made. 

RELATION  OF  MORTGAGOR  AND  MORTGAGEE, 

It  is  impossible  to  make  any  exact  statement  of  the  status 
or  rights  of  mortgagors  or  mortgagees  which  is  applicable  in 
all  States.  We  cannot  do  more  than  state  the  common  law 
and  point  out  a  few  instances  in  which  it  has  been  generally 
repealed  or  modified. 

MORTGAGEE'S  INTEREST  AT  COMMON  LAW. 

At  the  common  law,  as  has  been  already  stated,  a  mortgage 
was  the  conveyance  of  an  estate  upon  condition  subsequent. 
The  rights  of  the  parties  grew  out  of  and  were  consistent  with 
the  theory  that  the  mortgage  was  a  conveyance.  The  mort- 
gagee was  the  owner  of  an  estate  in  the  mortgaged  property, 
his  interest  was  considered  as  realty,  and  descended  on  his 
death,  to  his  heirs,  and  not  to  his  personal  representative;  on 
the  execution  of  the  mortgage,  he  became  the  owner  of  a  con- 
ditional estate,  and  after  default,  he  became  the  owner  of  a*i 
absolute  estate.  The  mortgagee  being  the  owner  of  the  mort- 
gaged property  was,  in  the  absence  of  an  agreement  to  the 
contrary,  entitled  to  its  possession. 

MORTGAGOR'S  INTEREST  AT  COMMON  LAW. 

It  is  difficult  to  define  the  mortgagor's  interest  at  the  com- 
mon law  before  default  and  while  in  possession. 


262  MORTGAGES. 

The  mortgage  being  a  conveyance  after  its  execution,  the 
fee  passed  to  the  mortgagee,  and  the  only  interest  remaining 
in  the  mortgagor  was  an  expectancy  or  possibility  that  on  the 
payment  of  the  mortgage  debt  when  due,  the  title  would  revert 
to  him.  At  the  common  law  the  possibility  of  the  property  re- 
verting to  the  mortgagor  on  the  performance  of  the  condition, 
was  not  regarded  as  an  estate. 

In  different  cases  a  mortgagor  has  been  called  a  "tenant  at 
will,"  "a  tenant  by  sufferance,"  "receiver's  agent,"  and  "agent 
of  the  mortgagee."  All  of  these  terms  have  been  criticised  as 
not  indicating  the  exact  status  of  the  mortgagor.  While  the 
right  of  the  mortgagor  to  perform  the  conditions  of  the  mort- 
gage and  have  the  property  reconveyed  to  him,  was  well 
recognized,  it  is  doubtful  whether  at  the  common  law,  "before 
default,  any  tenancy  existed  between  mortgagor  and  mort- 
gagee. After  default,  the  mortgagor  had  under  the  equitable 
doctrine,  the  right  to  redeem  the  property.  This  equity  of  re- 
demption was  not  an  estate  and  could  not  be  levied  upon  by 
his  creditors. 

MODIFICATION  OF  COMMON  LAW  DOCTRINES. 

While  many  of  the  States  still  regard  a  mortgage  as  a  con- 
veyance, none  of  them  accept  the  logical  consequence  of  that 
theory,  so  far  as  the  rights  of  the  parties  are  concerned. 

IN  STATES  ADOPTING  THE  COMMON  LAW  THEORY  OF  A 
MORTGAGE,  A  MORTGAGOR  IS  NOW  REGARDED,  AS  AGAINST 
-EVERYONE,  EXCEPT  THE  MORTGAGEE,  AS  THE  OWNER  OF 
THE  MORTGAGED  PREMISES.35 

^Turner    Coal    Co.    vs.    Glover.    101  Ala.,  280. 

Plaintiff  sued  defendant  for  cutting  down,  destroying  and  taking 
awav  certain  timber  from  land  owned  by  plaintiff,  and  recovered  a 
judgment  of  $2,000. 

Defendant  filed  a  petition  for  a  new  trial,  and  set  up  as  a  reason 
for  a  new  trial,  that,  previous  to  the  trial,  plaintiff  and  his  wife  had 
mortgaged  the  property  from  which  the  trees  were  cut,  and  that  such 
mortgage  was  undischarged  at  the  time  of  the  trial. 

The  lower  court  denied  the  petition  for  new  trial,  and  this  decision 
was  affirmed  by  the  Supreme  Court,  on  the  ground  that  the  mortgagor, 


MORTGAGES.  263 

He  may  sell  the  property,  subject,  of  course,  to  the  mort- 
gage, and  his  interest  in  the  mortgage  premises  is  subject  to 
be  taken  on  execution  for  the  satisfaction  of  his  debts.  His 
interest  in  the  premises  is  regarded  as  realty,  and  descends  to 
his  heirs. 

In  the  States  adopting  the  common  law  theory,  while  the 
title  still  vests  in  the  mortgagee,  and  on  his  death  descends 
to  his  heirs,  yet  it  is  held  by  the  latter  in  trust  for  the  benefit 
of  the  personal  representative.  Under  statutes  in  a  number  of 
these  States,  the  rights  of  the  mortgagee  on  his  death  pass  to 
his  administrator,  and  not  to  his  heirs. 

IN  THE  STATES  WHICH  ADOPT  THE  LIEN  THEORY,  THE 
MORTGAGOR  IS  THE  OWNER  OF  THE  FEE,  SUBJECT  TO  THE 
LIEN,  AND  MAY  EXERCISE  ANY  OF  THE  RIGHTS  OF  OWNER- 
SHIP WHICH  ARE  CONSISTENT  WITH  THE  RIGHTS  OF  THE 
MORTGAGEE. 

The  common  law  right  of  the  mortgagee  to  possession  on 
the  execution  of  the  mortgage  has  been  changed  by  statute  or 
by  judicial  legislation  in  most,  if  not  all  the  States.  In  most 
of  the  States  adopting  the  common  law  theory,  the  mortgagor 
is  entitled  to  possession  until  default;  after  default,  in  some 
States  the  mortgagee  is  entitled  to  possession;  but  in  most 
States  the  mortgagor  is  entitled  to  possession  until  the  mort- 
gage is  foreclosed.  In  the  States  adopting  the  lien  theory,  the 
mortgagor  is  entitled  to  possession  after  default,  and  up  to 
time  of  foreclosure.39 

whether  before  or  after  default,  is  regarded  as  the  owner  of  the 
mortgaged  property,  against  all  persons  except  the  mortgagee,  and 
that,  defendant  could  not,  therefore,  avail  himself  of  such  a  defense. 

«»Wagnr   vs.    Stone,   3O   Mich.,   3G4. 

Bill  in  chancery  to  foreclose  a  mortgage  given  by  defendants  to 
complainant. 

After  cause  was  at  issue  complainant  filed  a  petition  to  have  a 
receiver  appointed  to  take  charge  of  harvest  and  thresh  a  crop  of 
wheat  growing  on  mortgaged  property.  On  a  hearing  on  this  petition 
a  receiver  was  appointed.  Subsequently  the  receiver  paid  into  court 


264  MORTGAGES. 

In  some  of  the  States,  if  the  mortgagee  after  default  ob- 
tains the  possession  of  the  premises  peaceably,  with  the  con- 
sent of  the  mortgagor,  he  may  retain  them  until  the  mortgagor 
performs  the  condition  of  the  mortgage.40  Other  States  do 
not  adopt  this  rule,  and  the  mortgagor  may  recover  possession 
up  to  the  time  of  foreclosure.41 

TENANCY  BETWEEN  THE  MORTGAGOR  AND  MORTGAGEE. 

The  possession  of  the  mortgagor  or  the  mortgagee  under 
the  mortgage  is  in  the  nature  of  a  tenancy  to  this  extent,  that 
for  many  purposes  the  possession  of  one  is  regarded  as  the 
possession  of  the  other.  Thus,  a  disseisin  of  the  mortgagor 
will  be  a  disseisin  of  the  mortgagee,  and  a  disseisin  of  the 
mortgagee  amounts  to  a  disseisin  of  the  mortgagor.42  So,  ad- 
verse possession  will  not  commence  to  run  against  a  mortgagor 
or  a  mortgagee  as  long  as  one  of  them  is  in  possession.  This 

$106.91,  the  net  proceeds  of  the  wheat.  The  premises  were  subse- 
quently sold  for  a  sum  considerably  less  than  the  indebtedness.  Com- 
plainant then  filed  a  petition  for  an  order  directing  the  register  to  pay 
him  the  amount  paid  into  court  by  the  receiver.  The  court  refused 
to  make  the  order,  and  directed  the  money  to  be  paid  to  one  holding 
under  the  mortgagor.  This  decision  was  based  on  the  reasoning  that 
the  mortgage  conveyed  no  title  to  the  property,  and  that  the  mort- 
gagee, until  the  foreclosure  of  the  mortgage,  acquired  no  legal  interest 
in  the  mortgage  property,  and  that  under  the  statute  and  the  terms  of 
the  mortgage,  the  mortgagee  was  not  entitled  to  possession.  "It  would 
be  a  novel  doctrine  to  hold  that  the  mortgagee  had  a  right  to  the  profits 
incident  to  ownership,  and  yet  that  he  had  neither  a  legal  title  or  right 
to  possession." 

"Cooke  vs.  Cooper,  18  Or.,  142;  7  L.  R.  A.,  273. 
Bryan  vs.  Brasius,  162  U.  S.,  415. 

"Newton  vs.  McKay,  30  Mich.,  380. 

"PolKnsuid    vs.   Smith,   8   Pick.,   272. 

Stephen  Gaster,  in  1837,  executed  a  mortgage  to  the  Real  Estate 
Bank,  for  $30,000.  The  debt  did  not  mature  until  1861,  and  the  mort- 
gage provided  that  the  land  should  remain  in  possession  of  Gaster 
until  sold  to  satisfy  the  mortgage.  Gaster  died  in  1859,  and  his  heirs 
continued  in  possession  until  1866,  and  in  1868  the  land  was  sold  by 
Gaster's  administrator,  under  order  of  Probate  Court,  to  the  grantor 
of  defendants.  In  1876  the  State,  under  a  special  act,  commenced  the 
proceeding  to  foreclose  the  mortgage  to  the  Real  Estate  Bank.  The 
defendants  contended  that  Gaster  had  cultivated  the  land,  without 
interruption,  for  over  fifteen  years  before  his  death,  and  that  his  heirs 
and  the  grantee  of  his  administrator  had  always  claimed  to  own  the 


•       MORTGAGES.  265 

same  principle  is  sometimes  applied  between  the  parties  to  the 
mortgage,  and  until  a  default  in  the  conditions  of  mortgage  has 
been  made,  the  possession  of  either  party  is  regarded  as  that 
of  the  other,  and  neither  can  claim  adverse  possession  against 
the  other.43 

After  default  the  mortgagor's  possession  may  become  ad- 
verse by  some  act  of  hostility  against  the  mortgagee  which 
amounts  to  a  disavowal  of  the  latter's  rights  under  the  mort- 
gage. Even  after  default,  the  mortgagor's  possession  is  pre- 
sumed to  be  subordinate  to  the  rights  of  the  mortgagee,  and 
his  possession  will  be  regarded  as  adverse  only,  when  this 
presumption  is  rebutted  by  proof  of  some  hostile  act  sufficient 
to  make  him  an  adverse  holder.44  In  those  States  in  which 
the  mortgage  is  not  a  conveyance,  the  mortgagee  is  not  the 
owner  of  an  estate,  and  it  cannot,  therefore,  be  lost  by  adverse 
possession  on  the  part  of  the  mortgagor.  In  these  States  the 
statutes  usually  provide  that  no  suit  or  proceeding  may  be 
had  to  foreclose  a  mortgage,  unless  commenced  within  a  cer- 
tain number  of  years  after  the  time  the  mortgage  became  due, 
or  within  a  certain  number  of  years  after  the  last  payment 
made  on  the  mortgage. 

The  relationship  of  the  mortgagor  and  the  mortgagee  is 
also  in  the  nature  of  a  tenancy,  in  that  the  mortgagee  is 

land  in  fee  simple;  but  there  was  no  evidence  that  Gaster  or  his  heirs 
had  ever  repudiated  the  mortgage. 

The  court  held  that  the  possession  of  the  mortgagor  (Gaster)  and 
his  grantees  was  not  adverse  to  the  mortgagee,  and  that  there  had 
been  no  explicit  disavowal  of  mortgagee's  title  and  no  overt  act  of 
hostility  to  it,  of  which  the  mortgagee  had  notice,  and  that  no  title  was 
acquired  by  adverse  possession. 
'"Duke  vs.  State,  20  S.  W.,  600. 

"To  constitute  a  dissesin  of  the  mortgagee  by  the  mortgagor  or 
those  claiming  under  him,  it  must  be  made  known  to  the  mortgagee 
that  the  mortgagor  or  his  grantees  claim  adversely  to  his  right. 
Holmes  vs.  Turner  Falls  Co.,  150  Mass.,  535. 
Gafford  vs.  Strouse,  7  So.,  248. 
Benton  County  vs.  Czarlinsky  (Mo.),  14  S.  W.,  114. 


266  MORTGAGES. 

estopped  from  denying  the  mortgagor's  title;  and  the  mort- 
gagor may  not  attempt  to  defeat  the  mortgagee's  interest  by 
setting  up  a  superior  title  acquired  subsequent  to  the  making 
of  the  mortgage.45 

So,  if  the  mortgagee  acquires  an  outstanding  title  from  a 
third  person,  it  will  enure  to  the  mortgagor's  benefit  on  his 
paying  his  just  proportion  of  the  cost.46 

RIGHTS  AND  LIABILITIES  OF  MORTGAGOR. 

The  mortgagor  being  the  owner  as  against  all  persons,  ex- 
cept the  mortgagee,  may,  as  long  as  he  retains  possession,  ex- 
ercise as  against  third  persons,  all  the  rights  of  an  owner.  He 
may  recover  for  a  trespass  on  the  property;47  he  may  maintain 
an  action  to  recover  possession;  he  may  convey  or  lease  the 

"Farmers'  and  Mechanics'  Bank  vs.  Bronson,  14  Mich.,  361. 

Tefft  vs.  Munsoii,  57  N.  Y.,  79. 

This  was  an  action  to  restrain  defendants  from  foreclosing  a 
mortgage. 

Martin  B.  Perkins  was  in  possession  of  property  owned  by  his 
father,  Gamaliel  Perkins.  Martin  forged  a  deed  from  his  father  to 
himself  and  placed  it  on  record  and,  subsequently,  on  October  1st,  1850, 
gave  a  mortgage  on  the  property  for  $1,000.  On  the  same  date  this 
mortgage  was  recorded.  The  mortgage  contained  covenants  that  Mar- 
tin B.  and  his  wife  were  lawfully  seised  of  a  lawful,  true  and  perfect 
title  to  the  property.  On  the  16th  of  December,  1859,  Gamaliel  Perkins 
conveyed  the  property  to  his  son,  Martin  B.,  and,  until  this  conveyance 
Martin  B.  had  no  title  to  the  land.  On  January  31st,  1867,  Martin  B., 
being  still  in  possession,  conveyed  the  property  to  plaintiff,  who  paid 
full  value  for  it,  without  any  notice  of  the  mortgage. 

The  court  held  that  the  principle  of  law,  that  where  one  who  has 
no  title  to  lands  makes  a  conveyance  with  warranty,  and  afterwards 
purchases  and  receives  the  title,  the  same  will  vest  immediately  in  his 
grantee  as  against  the  grantor  by  estoppel,  was  applicable  to  this  case, 
and  that  Martin  B.  Perkins  was  estopped  from  denying  that  he  had 
no  title  at  the  time  of  the  mortgage. 

It  was  held  that  this  doctrine  of  estoppel  applied  not  only  to  Martin 
B.  Perkins,  but  all  privies  in  estate  with  him.  A  judgment  dismissing 
bill  of  complaint  was  affirmed. 

46Thus  a  mortgagee  cannot  set  up  as  against  the  mortgagor  or  other 
mortgagees  a  tax  title  to  the  mortgaged  estate  purchased  by  him  at  a 
tax  sale. 

Hall  vs.  Westcott,  15  R.  I.,  373. 

Conn.  Mut.  Life  vs.  Stinson,  62  111.  App.,  324. 

"Talcott  vs.  Peterson,  63  111.  App.,  421. 
Bird  vs.  Decker,  64  Me.,  550. 


MORTGAGES.  267 

premises,  and,  in  short,  may  perform  all  acts  incidental  to 
ownership. 

As  against  the  mortgagee,  the  mortgagor,  so  long  as  he 
has  a  right  to  possession  or  retains  possession,  is  entitled  to 
the  rents  of  the  property  in  the  absence  of  an  agreement  that 
they  belong  to  the  mortgagee;  and  this  right  to  the  rents  con- 
tinues until  foreclosure  or  possession  by  the  mortgagee.48 

The  mortgagor  as  long  as  he  retains  possession  is  entitled 
to  the  crops  raised  on  the  property  and  to  reasonable  estov- 
ers.49 

The  mortgagor,  if  in  possession,  must  pay  all  taxes  assessed 
upon  the  property.50  It  is  his  duty  to  treat  the  premises  in 
such  a  manner  as  not  to  impair  the  mortgagee's  security,  ife 
must  not  commit  waste;  and  he  or  other  persons  may  be  re- 
strained by  an  injunction  from  doing  acts  which  tend  to  im- 
pair the  mortgage  security.51  It  is,  of  course,  the  duty  of  the 


"Gaskell   vs.   Viquesney,   122  Intl.,  244. 

Plaintiff  was  owner  of  a  third  mortgage  in  land  owned  by  Viques- 
uey.  Previous  to  the  commencement  of  this  suit  the  second  mortgage 
had  been  regularly  foreclosed  and  the  property  -was  bid  in  by  one 
Shirley  who  received  a  sheriff  deed  therefor  and  entered  into  possession. 
Plaintiff  was  not  made  a  party  to  the  foreclosure  and  commenced  this 
proceeding  as  a  junior  incumbrancer  to  redeem  from  the  foreclosure 
sale  and  for  an  accounting  for  rents  and  profits  received  by  Shirley. 

The  court  held  that  the  plaintiff  not  being  a  party  to  the  fore- 
closure was  not  bound  by  it  and  was  entitled  to  redeem  on  paying  the 
amount  of  second  mortgage.  But  the  court  held  that  plaintiff  was 
not  entitled  to  an  accounting  for  rents,  and  that  the  rents  received 
should  not  apply  on  the  mortgage.  The  general  doctrine  that  a  mort- 
gagor was  entitled  to  the  rents  and  profits  until  his  legal  estate  was 
divested,  and  that  a  junior  incumbrancer  might  stand  in  place  of 
mortgagor  and  compel  an  accounting  in  same  way  as  a  mortgagor,  was 
adopted  by  the  court;  but  in  this  case  the  mortgagor's  title  having 
been  cut  off  by  the  foreclosure,  the  right  of  the  junior  incumbrancer  to 
an  accounting,  being  through  the  mortgagor  was  held  to  cease  when 
the  latter's  title  was  cut  off.  In  other  words,  the  junior  incumbrancer 
was  not  entitled  to  an  accounting  when  that  right  did  not  belong  to 
the  mortgagor. 

"Simpson  vs.  Ferguson,  44  P.,  484. 
50Drew  vs.  Morrill,  62  N.  H.,  565. 


268  MORTGAGES. 

mortgagor  to  pay  the  interest  and  the  principal  on  mortgage 
when  due.  The  mortgagor  is  not  personally  liable  to  pay  the 
mortgage  unless  there  is  an  express  covenant  in  the  mortgage 
to  pay,  or  unless  the  mortgage  is  collateral  to  a  note  or  bond 
or  other  personal  obligation. 

In  the  absence  of  a  personal  undertaking  on  the  part  of 
the  mortgagor,  the  mortgagee's  only  remedy  is  against  the 
property.52 

RIGHTS  AND  LIABILITIES  OF  MORTGAGEE. 

If  the  mortgagee  takes  possession  he  may  receive  the  rents 
and  profits ;  and  he  must  apply  them  on  the  mortgage  indebt- 
edness.53 The  mortgagee,  while  in  possession,  must  keep  the 
premises  in  reasonable  repair;  and  on  an  accounting  he  may 
credit  himself  with  the  cost  of  proper  repairs.  If  the  mort- 
gagee, in  addition  to  the  necessary  repairs,  erects  permanent 
improvements  not  necessary  to  keep  the  premises  in  repair, 
he  will  not  be  entitled  on  an  accounting  to  credit  himself  with 
their  cost.54 

A  mortgagee  in  possession  may  credit  payment  for  taxes 
against  amount  received  for  rents  or  profits.53 

"Ryan  vs.  Martin,  104  N.  C.,  176. 

On  failure  of  mortgagor  to  pay  taxes  when  he  has  covenanted,  to 
do  so  the  mortgagee  may  pay  them  and  add  them  to  his  mortgage. 
Verner  vs.  Betz,  46  N.  J.  Eq.,  256. 
Boone  vs.  Clark,  129  111.,  466;  5  L.  R.  A.,  276. 

"A  mortgage  may  be  valid  without  a  note  or  bond,  although  it  pur- 
ports to  secure  a  personal  obligation,  made  contemporaneously  with 
the  making  of  the  mortgage. 

Lee  vs.  Fletcher,  46  Miun.,  49. 
5IFroud  vs.  Merritt  (Iowa),  68  N.  W.,  728. 

And  the  mortgagee  in  possession  before  foreclosure  will  be 
charged  not  only  with  the  net  rents  and  profits  which  he  actually 
received,  but  also  with  the  rents  which  he  might  have  collected  by 
exercise  of  reasonable  diligence. 

"White  vs.  Atlas  Lumber  Co.,  49  Neb.,  82. 
"White  vs.  Atlas  Lumber  Co.,  49  Neb.,  82. 


MORTGAGES.  269 

The  mortgagee  as  well  as  the  mortgagor  has  an  insurable 
interest  in  the  mortgaged  property  and  may  take  out  inde- 
pendent insurance  to  protect  such  interest. 

The  distinct  insurable  interest  of  each  of  the  parties  is 
illustrated  by  those  cases  which  hold  that  where  the  mort- 
gagee takes  out  insurance  on  his  own  interest,  at  his  own 
expense,  and  there  is  no  agreement  that  the  insurance  money 
shall  be  applied  on  the  debt  in  event  of  a  loss,  the  mortgagor 
cannot  claim  that  proceeds  of  insurance  shall  apply  on  his 
debt56 

There  is  now  usually  a  provision  in  the  mortgage  that  the 
mortgagor  shall  keep  the  improvements  on  the  property  in- 
sured for  the  benefit  of  the  mortgagee,  and  that  in  default 
thereof  the  mortgagee  may  insure  the  premises  and  add  the 
amount  of  the  premiums  paid,  to  the  face  of  the  mortgage. 

Under  such  a  provision,  if  the  mortgagor  takes  the  insur- 
ance in  his  own  name,  the  mortgagee  will  have  a  lien  to  the 
extent  of  his  interest  on  the  proceeds  of  the  insurance.  It  is 
usual  to  take  out  the  insurance  in  the  mortgagors  name,  but 
with  a  clause  providing  that  the  "loss  shall  be  payable  to  the 
mortgagee  as  his  interest  may  appear."  In  the  absence  of  the 
provision  as  to  insurance  in  the  mortgage,  the  mortgagee  will 
not  be  entitled  to  proceeds  of  insurance  taken  out  by  the 
mortgagor.57 

When  there  is  an  obligation  on  the  mortgagor  to  take  out 
insurance,  if  he  fails  to  do  so,  the  mortgagee  may  do  so,  and 
on  foreclosure  he  will  be  entitled  to  have  the  decree  include 
amount  so  paid,  or  the  mortgagee,  if  in  possession,  may  deduct 

"Gushing  vs.  Thompson,  103  Mass.,  219. 

Excelsior  Fire  Ins.  Co.  vs.  Royal  Ins.  Co.,  55  N.  Y.,  343. 
"McDonald  vs.  Black,  20"  Ohio,  185. 

Plimpton  vs.  Fanners'  Ins.  Co.,  43  Vt,  497. 


270  MORTGAGES. 

from  rents  the  amount  paid,  when  the  insurance  has  been  taken 
out  in  the  name  of  the  mortgagor.58 

When  the  insurance  is  taken  out  in  the  way  mentioned, 
i.  e.,  on  mortgagor's  interest,  with  loss  payable  to  mortgagee 
as  his  interest  may  appear,  the  insurance  is  only  on  mort- 
gagor's interest,  and  in  the  absence  of  an  express  agreement 
to  the  contrary,  anything  which  will  defeat  the  policy  as  to 
mortgagor,  will  cut  off  mortgagee's  right,59  and  any  transfer 
by  the  mortgagor  of  his  interest  before  loss  will  defeat  the 
right  to  recover.60 

THE  CONSIDERATION. 

A  mortgage,  like  other  contracts,  must  be  supported  by  a 
legal  consideration.  Most  mortgages  are  given  to  secure  a 
money  indebtedness.  The  mortgage  ought  to  describe  the  in- 
debtedness so  that  the  amount  of  it  may  be  ascertained,  either 
from  the  instrument  or  by  inquiry.  In  other  words,  the  debt 
ought  to  be  sufficiently  described,  so  that  it  can  be  distin- 
guished from  other  debts  between  the  same  parties;  and  to 
entitle  a  debt  to  security  it  must  come  fairly  within  the  de- 
scription of  the  debt  in  the  mortgage.  If  the  amount  of  the 
debt  can  be  ascertained,  it  ought  to  be  stated  in  the  mort- 
gage.61 The  indebtedness  may  be  one  which  was  created  prior 
to  or  contemporaneously  writh,  the  execution  of  the  mortgage. 
The  mortgage  may  also  be  given  to  secure  advances  to  be 
made  in  the  future. 

In  the  case  of  mortgages  for  future  advances,  very  fre- 

MWhite  vs.  Atlas  Lumber  Co.,  49  Neb.,  82. 
59Hamel  vs.  Corbin,  72  N.  W..  106. 
"Wilkins  vs.  French,  20  Me.,  111. 

For  the  same  reason,  if  the  insurance  is  taken  by  the  mortgagee 
at  his  own  expense,  the  insurance  merely  covers  his  debt,  and  if  the 
debt  has  been  paid,  there  can  be  no  recovery. 

Carpenter  vs.  Providence-Washington  Ins.  Co.,  16  Pet.  (U.  S.),  501. 
"Hart  vs.  Chalker.  14  Conn.,  77. 


MORTGAGES.  271 

quently  interesting  questions  arise  as  to  the  priority  of  the 
mortgage  over  a  subsequent  mortgage  or  incurnbrance. 

In  a  book  of  this  character  we  cannot  enter  into  a  dis- 
cussion of  the  various  rules  adopted  by  the  different  courts; 
but  as  a  general  rule  the  mortgagee  will  be  secured  for  all 
advances  made  under  such  a  mortgage  prior  to  actual  notice 
of  the  supervening  rights  of  subsequent  purchasers  or  incum- 
brancers.  Where  the  future  advances  are  obligatory  under  the 
terms  of  the  mortgage,  and  the  mortgage  has  been  recorded, 
the  mortgagee  has  priority  over  all  purchasers  or  creditors 
subsequent  to  the  recording  of  the  mortgage,  even  for  advances 
made  subsequent  to  that  of  the  purchaser  or  incumbrancer.62 

Where  it  is  optional  with  mortgagee  as  to  whether  or,not 
he  would  make  any  advancement,  any  advancement  made  sub- 
sequent to  actual  notice  of  rights  of  a  subsequent  incum- 
brancer or  purchaser,  will  be  subsequent  to  the  latter;s  rights.63 
And  in  some  States  optional  advances  made  subsequent  to  the 
recording  of  an  instrument,  conveying  or  mortgaging  the 
property,  and  without  actual  notice  of  subsequent  rights,  will 
not  have  priority.04 

Mortgages  may  also  be  made  to  secure  one  against  a  pres- 
ent liability,  or  against  a  contingent  liability.  Thus,  where 
one  has  endorsed  a  note  for  another,  a  mortgage  by  the  latter 
to  secure  the  endorser  from  loss  by  reason  of  such  endorse- 
ment on  the  note  will  be  valid.65  The  indebtedness  secured 
may  be  unliquidated.  Thus,  a  mortgage  to  secure  an  indebted- 
ness, the  amount  of  which  can  only  be  determined  by  an  ac- 
counting between  the  parties,  is  valid. 

'"Witczniski  vs.  Everman,  51  Miss..  841. 
63Boswell  vs.  Goodwin,  31  Conn.,  74. 

Tapia  vs.  Demartini,  77  Cal.,  383. 
"Ladue  vs.  D.  &  M.  R.  R.,  13  Mich.,  3.80. 
"Duncan  vs.  Miller,  64  Iowa,  223. 

Williams  vs.  Silliman  (Tex.),  12  S.  W.,  534. 


272  MORTGAGES. 

Mortgages  are  sometimes  given  to  secure  the  performance 
of  acts  other  than  the  payment  of  money.  The  most  common 
example  of  a  mortgage  of  this  kind  is  known  as  a  mortgage 
for  support.  Frequently  land  is  conveyed  to  a  grantee,  who,  in 
consideration  of  the  grant,  executes  a  mortgage,  conditioned 
on  the  support  of  the  mortgagee  or  other  persons  for  life,  or 
any  period  agreed  on,  or,  sometimes  a  deed  is  given  containing 
a  condition  that  the  grantee  shall  support  the  grantor  or 
other  persons. 

Some  courts,  while  affording  many  of  the  remedies  appli- 
cable in  case  of  a  mortgage,  yet  deny  that  such  conveyances 
constitute  a  mortgage.66  It  is  well  settled,  however,  in  most 
States,  that  a  conveyance  securing  the  performance  of  an 
agreement  to  support  is  a  mortgage.67  In  some  States  a  deed 
containing  a  condition  for  support  is  regarded  as  conveyances 
on  condition,  and  upon  the  breach  of  condition  the  grantor  may 
re-enter  and  terminate  the  estate  granted.68  If  the  mortgagor 
refuses  to  perform  the  conditions  of  the  mortgage  as  to  sup- 
port of  mortgage,  the  mortgage  may  be  foreclosed. 

On  a  foreclosure  the  court  will  take  into  consideration 
the  amount  of  support  already  furnished  the  mortgagee,  and 
will  decree  the  payment  of  an  amount  sufficient  to  compensate 
the  mortgagee  for  his  damages  growing  out  of  the  mortgagor's 
breach  of  the  conditions  of  the  contract,69  which  is  usually  a 
sum  sufficient  to  provide  support  for  the  unexpired  portion  of 
the  term  as  agreed  in  mortgage. 

When  no  place  is  mentioned  in  the  mortgage  as  to  where 
the  support  shall  be  furnished,  the  mortgagee  may  select  some 

""Bethlehem  vs.  Annis,  40  N.  H.,  34. 
07Cook  vs.  Bartholomew,  60  Conn.,  24. 

Wright  vs.  Wright,  49  Mich.,  624. 
"Blum  vs.  Bush,  86  Mich.,  206. 
"Wright  vs.  Wright,  49  Mich.,  624. 


MORTGAGES.  27& 

reasonable  place  and  will  not  be  compelled  to  live  with,  or  at 
place  designated  by  the  mortgagor.70  Mortgages  of  this  kind 
are  usually  made  between  parties  in  close  relationship,  and 
the  courts  usually  hold  that  the  trust  reposed  in  the  mortgagor 
is  personal  and  he  cannot  assign  his  interest  in  the  property 
and  oblige  the  mortgagee  to  accept  support  or  services  from 
another,  unless  consented  to  by  the  mortgagee.71 

WHAT  MAY  BE  MORTGAGED. 

Any  interest  in  real  property  capable  of  being  transferred 
may  be  mortgaged.  Thus,  estates  in  remainder  or  reversion 
estates  for  life  or  years,  contingent  interests,72  the  interests  of 
a  mortgagee  in  mortgaged  land,  the  interest  of  one  in  posses- 
sion under  a  land  contract,  may  be  the  subject  of  a  mortgage. 

A  mere  possibility  of  an  interest  not  coupled  with  a  present 
interest  in  real  estate  may  not  be  mortgaged.73 

A  mortgage  on  property  in  which  the  mortgagor  has  no 
present  interest,  but  which  is  to  be  acquired  subsequent  to 
the  making  of  the  mortgage,  may  be  enforced  in  equity  against 
the  subsequently  acquired  property.  A  mortgage  on  after 
acquired  property  becomes  a  lien  as  against  the  mortgagor  as 
soon  as  the  title  to  the  property  is  acquired  by  the  mort- 
gagor.74 

ASSIGNMENT. 

(a)  Transfer  of  Mortgagor's  Interest. 

At  the  common  law,  a  mortgage  being  a  conveyance,  it  was 

70Tuttle  vs.  Burgett,  53  Ohio  St.,  498;  30  L.  R.  A.,  214. 

Powers  vs.  Mastin  (Vt),  20  A.,  105. 
"Flanders  vs.  Lamphear,  9  N.  H..  20.1. 
"Young  vs.  Young,  89  Va.,  675;  23  L.  R.  A.,  642. 
"Low  vs.  Pew,  108  Mass.,  347. 
"Mitchell  vs.  Winslow,  2  Story  (U.  S.),  630. 

At  the  common  law  a  mortgage  was  operative  only  as  to  property 
actually  in  existence  at  time  of  making  mortgage  and  the  rule  stated 
in  the  text  is  the  one  enforced  in  courts  of  equity. 

Maxwell  vs.  Wilmington  Dental  Co.,  77  Fed.,  938. 


274  MORTGAGES. 

difficult  to  define  the  interest  continuing  in  the  mortgagor 
after  the  making  of  the  mortgage. 

It  is  well  settled  now  in  the  States  adopting  the  common 
law  theory  of  a  mortgage,  that  after  the  making  of  the  mort- 
gage, the  mortgagor  has  still  an  interest  in  the  property.  This 
interest  is  more  than  an  equity  of  redemption;  it  is  substan- 
tially an  ownership  of  the  land,  subject  to  the  mortgage. 

The  mortgagor  may  make  subsequent  mortgages  on  his 
interest,  and  he  may  sell  and  transfer  it  to  another  in  the  same 
way  as  any  other  interest  in  real  property. 

In  the  States  adopting  the  lien  theory,  the  mortgage  being 
a  lien  does  not  vest  any  title  in  the  mortgagee,  and  'the  title 
to  the  property,  after  the  making  of  the  mortgage,  continues 
in  the  mortgagor.  A  grant,  therefore,  of  the  mortgagor's  in- 
terest, does  not  convey  merely  an  equity  of  redemption,  but 
title  to  the  property. 

In  all  States  the  transfer  of  the  mortgagor's  interest  is  by 
deed,  and  the  parties  to  the  deed  are  described  as  grantor  and 
grantee,  not  assignor  and  assignee. 

In  all  States  the  grantee  of  the  mortgagor's  interest  takes 
the  property  subject  to  the  rights  of  the  mortgagee,  and  ac- 
quires precisely  the  same  rights  that  the  mortgagor  had, 
Thus,  the  grantee  is  entitled  to  possession  if  the  mortgagor 
had  that  right;  and  he  may  collect  rents  and  use  the  property 
in  the  same  way  as  the  mortgagor  might. 

THE  ASSIGNEE,  HOWEVEB,  IN  THE  ABSENCE  OF  A  SPE- 
CIAL AGREEMENT,  IS  UNDER  NO  PERSONAL  OBLIGATION  TO 
PAY  THE  MORTGAGE  DEBT. 

Very  often  in  the  conveyance  of  the  grantor's  interest,  the 
grantee  expressly  assumes  and  agrees  to  pay  the  mortgage 
debt,  as  a  part  of  the  consideration  of  the  transfer. 


MORTGAGES.  275 

Under  sucli  provision,  the  grantee  becomes  personally  re- 
sponsible to  the  mortgagee  for  the  debt,  and,  on  foreclosure,  a 
personal  decree  for  any  deficiency  may  be  taken  against  him.75 

This  right  of  the  mortgagee  to  enforce  the  payment  of  the 
mortgage  debt  against  one  who  has  assumed  and  agreed-  to 
pay  it,  does  not  rest  upon  any  contract  between  the  mortgagee 
and  such  grantee  which  is  enforceable  at  law,  but  it  is  held  in 
equity  that  the  grantee  becomes  primarily  liable  to  pay  the 
debt,  and  that  the  mortgagor  becomes  a  surety  for  its  payment. 

The  rights  of  the  mortgagee  to  enforce  the  payment  against 
the  assignee  or  grantee  assuming  the  mortgage  are  therefore 
purely  equitable.  This  is  the  prevailing  doctrine.76 

In  some  States,  however,  the  agreement  to  pay  the  mort- 
gage is  treated  as  one  made  for  the  mortgagee's  benefit,  and 
which  he  may  adopt  and  treat  as  his  own  and  enforce  by  a 
suit  at  law.77 

The  mortgagee,  in  the  absence  of  a  release,  may  still  hold 
the  original  mortgagor  personally  responsible  for  the  debt. 


vs.  Murphy,  45  Neb.,  SOO;  29  L,.  R.  A.,  831. 

This  was  an  action  brought  by  an  assignee  of  a  mortgage  to 
enforce  the  payment  of  the  mortgage. 

The  land  in  question  at  time  of  giving  of  mortgage  was  owne<! 
by  one  D.  A.  Spraul.  who,  after  the  giving  of  the  mortgage,  conveyed 
to  William  L.  Schuster.  Schuster  subsequently  conveyed  the  land  to 
the  defendant.  In  the  latter  deed  defendant  Murphy,  as  part  of  the 
consideration  of  the  purchase  price  of  the  property,  agreed  to  pay  the 
mortgage  indebtedness.  Defendant  Murphy  insisted  that  because  his 
grantor  Schuster  had  not  assumed  the  payment  of  the  incumbrance. 
his  own  undertaking  to  do  so  was  not  operative.  The  court  held  that 
it  was  immaterial  and  of  no  consequence  to  the  grantee  that  his 
grantor  was  or  was  not  personally  responsible  for  the  payment  of  the 
mortgage  debt.  It  was  held  that  the  rule  that  where  one  makes  a 
promise  to  another  for  the  benefit  of  a  third  person,  such  third  person 
may  maintain  an  action  upon  the  promise,  though  the  consideration 
does  not  move  directly  from  him,  was  applicable  to  this  case,  and  the 
Judgment  of  the  lower  court  in  favor  of  defendant  was  reversed  and 
cause  remanded  for  further  proceedings. 

Equitable  Life  Assce.  Co.  vs.  Bostwick,  100  N.  Y.,  628. 

See  Enos  vs.  Sanger,  96  Wis.,  150;  37  L.  R.  A.,  862. 

"Keller  vs.  Ashford,  133  U.  S.,  610. 

Knapp  vs.  Connecticut  Mutual  Life  Ins    Co.,  f>6  U.  S.  App..  452; 
40  L.  R.  A.,  861. 

"Lawrence  vs.  Fox.  20  N.  Y..  268. 


276  MORTGAGES. 

As  between  the  parties  to  the  grant,  however,  the  grantee 
who  assumes  and  agrees  to  pay  the  mortgage  debt,  is  primarily 
responsible,  and  the  mortgagor  may  compel  him  to  pay  the  full 
debt.  In  other  words,  as  already  stated,  the  grantee  becomes 
the  principal  debtor,  and  the  grantor  is  merely  a  surety.78 

It  follows  that  any  act  of  the  mortgagee,  such  as  exten- 
sion of  time  to  grantee,  which  would  release  a  surety,  will  re- 
lease the  grantor.  If  the  grantor  is  subsequently  obliged  to 
pay  the  mortgage,  he  will  be  subrogated  to  the  rights  of  the 
mortgagee. 

(b)     ASSIGNMENT  OF  MORTGAGEE'S  INTEREST. 

The  mortgagee  may  assign  his  interest.  At  the  common 
law,  the  mortgagee  was  the  owner  of  an  estate  in  the  property, 
and  this  interest  could  only  be  conveyed  by  deed.  In  all  States 
the  statutes  now  provide  how  an  assignment  may  be  executed. 

TSUnion  Mut.  Life  Ins.  Co.   vs.   Han  lord     143   I  .   S.,  187. 

Bill  in  equity  to  foreclose  a  mortgage  and  to  obtain  a  personal 
decree  against  defendants. 

On  September  9th.  1870,  defendant  Hanford  and  Chase  gave  a. 
mortgage  on  certain  land  for  $5,000,  which  mortgage  on  January  31st, 
1871,  was  purchased  by  the  complainant.  On  September  9th,  1872, 
Hanford  and  Chase  conveyed  the  land  to  Mrs.  Fake  by  a  warranty 
deed  containing  a  provision  which,  after  describing  the  above  mort- 
gage and  notes,  reads  as  follows:  "The  above  mortgage  and  notes,  it 
is  hereby  expressly  agreed,  shall  be  assumed  and  paid  by  the  party  of 
second  part,  and  when  paid  are  to  be  delivered  and  fully  canceled  to 
said  Chase  and  Hanford." 

After  notice  of  the  assignment,  the  complainant  subsequently 
received  therinterest  from  Mrs.  Fake,  and  extended  the  time  of  payment 
of  the  mortgage  at  her  request,  without  knowledge  of  Hanford  and 
Chase.  The  complainant  sought  to  obtain  a  decree  for  deficiency 
against  Hanford  and  Chase,  the  property  on  foreclosure  having  failed 
to  realize  sufficient  to  pay  mortgage  debt.  The  court  refused  to  hold 
such  defendants  liable,  and  said:  "The  grantee,  as  soon  as  the  mort- 
gagee knows  of  the  arrangement,  becomes  directly  and  primarily  liable 
to  the  mortgagee  for  the  debt  which  the  mortgagor  was  already  liable 
to  the  latter;  and  the  relation  of  the  grantee  and  the  grantor  towards 
the  mortgagee,  as  well  as  between  themselves,  is  thenceforth  that  of 
principal  and  surety  for  the  mortgage  debt.  Where  such  is  held  to  be 
the  relation  of  the  parties,  the  consequences  must  follow  that  any 
subsequent  agreement  of  the  mortgagee  with  the  grantee,  without  the 
assent  of  the  grantor,  extending  the  time  of  the  payment  of  the  mort- 
gage debt  discharges  the  grantor  (surety)  from  all  liability  for  that 
debt." 


MORTGAGES.  277 

In  States  adopting  the  common  law  theory,  the  transfer  of 
the  property,  or  mortgage  unaccompanied  by  an  assignment, 
or  delivery  of  the  note,  operates  only  as  a  transfer  of  the  legal 
estate,  which  the  assignee  or  grantee  holds  in  trust  for  the 
owner  of  the  debt.  In  the  States  adopting  the  lien  theory,  the 
obligation  or  mortgage  debt  is  the  principal  undertaking,  and 
the  mortgage  itself  is  a  mere  collateral  to  it.  In  such  States 
the  assignment  or  transfer  of  the  debt  operates  as  an  equitable 
assignment  of  the  mortgage;79  and  an  assignment  of  a  portion 
of  the  mortgage  debt  operates  as  an  assignment  of  a  pro  tanto 
interest  in  the  mortgage.80 

When  the  mortgage  is  given  to  secure  several  notes,  a  trans- 
fer of  the  notes  to  different  persons  as  a  general  rule,  in  ab- 
sense  of  an  agreement  to  the  contrary,  will  pass  an  interest  in 
mortgage  to  the  respective  holders  of  the  notes;  in  proportion 
to  the  amount  due  each  holder;81  but  in  some  States,  the  holder 
of  the  notes  first  coming  due  will  have  priority  over  holders 
of  the  other  notes.82 

Under  the  lien  theory,  an  assignment  of  the  mortgage  with- 
out an  assignment  of  the  indebtedness  is  a  nullity,83  for  the  in- 
debtedness is  the  principal  thing,  and  the  mortgage  merely  an 
incident  thereto.84 

"Parker  vs.  Randolph,  5  S.  D.,  549;  29  L.  R.  A.,  33. 

Perkins  vs.  Gumbel,  49  La.  Ann.,  653. 

Smith  vs.  Mohr,  64  Mo.  App.,  39. 

The  legal  title  however  continues  in  the  mortgagee. 

Curtis  vs.  Cutler,  76  Fed.  R.,  16;  37  L.  R.  A.,  737. 
""Parker  vs.  Randolph,  5  S.  D.,  549. 
"Phelan  vs.  Olney,  6  Cal.,  480. 

English  vs.  Carney,  25  Mich.,  178. 

Nashville  Trust  Co.  vs.  Smythe,  94  Tenn..  513;  27  L.  R.  A.,  663. 
MDoss  vs.  Ditmars,  70  Ind.,  451. 

Huffard  vs.  Gottberg,  54  Mo.,  271. 
"Fletcher  vs.  Carpenter,  37  Mich.,  412. 
Bowers  vs.  Johnson,  49  N.  Y.,  432. 
"Merritt   vs.   Bartholick,   36   N.   Y.,  44. 

Jane  Merritt  was  the  owner  of  a  bond  and  a  mortgage  collateral 
thereto;  and  being  indebted  to  one  Wentworth  in  sum  of  $200,  delivered 
the  mortgage  without  the  bond  to  him  as  collateral  security  for  said 
debt  of  $200.  Subsequently  the  mortgage  and  bond  were  assigned  by 


278  MORTGAGES. 

After  an  assignment,  the  assignee  should  notify  the  mort- 
gagor of  the  assignment;  for  the  mortgagor,  until  he  receives 
actual  or  constructive  notice  of  the  assignment,  is  entitled  to 
deal- with  the  mortgagee,  on  the  supposition  that  no  transfer 
had  been  made.85  Any  payment,  therefore,  by  the  mortgagor 
to  the  mortgagee,  without  notice  of  the  assignment,  will  apply 
on  the  mortgage,  and  if  the  payment  is  in  full,  the  mortgage 
will  be  discharged.86 

This  statement  requires  some  limitation.  Some  courts  have 
held  that  if  the  mortgage  is  collateral  to  an  obligation  which 
is  negotiable,  the  mortgagor,  as  long  as  the  obligation  retains 
its  negotiable  character  (that  is,  before  its  maturity),  must 
make  his  payments  to  the  holder  of  the  note,  and  any  payment 
made  to  any  person  who  is  not  the  holder  of  the  note  will  be 
at  his  peril.87  This  ruling  is  based  on  the  reasoning  that  a 
negotiable  note  is  none  the  less  negotiable  when  secured  by  a 
mortgage,  and  the  presumption  that  a  transfer  has  not  been 
made,  does  not  arise  in  the  case  of  negotiable  paper.88 

In  some  States  the  statutes  permit  the  recording  of  assign- 
ments of  mortgages;  and  in  a  few  of  such  States  the  recording 


Merritt  to  John  Campbell  by  writing.  Wentworth  afterwards  fore- 
closed the  mortgage  and  defendant  claims  title  through  purchaser  at 
foreclosure  sale.  This  suit  was  brought  to  test  defendant's  title  and 
turned  on  validity  of  assignment  to  Wentworth. 

The  court  held  that  a  mortgage  was  but  an  incident  to  the  debt 
which  it  was  intended  to  secure,  and  that  a  transfer  of  the  mortgage 
without  the  debt  is  a  nullity  and  no  interest  is  acquired  by  it;  "for  the 
legal  maxim  is  the  incident  shall  pass  by  the  grant  of  the  principal, 
but  not  the  principal  by  the  grant  of  the  incident."  It  was  held  that 
it  not  appearing  that  there  was  an  intent  to  assign  the  bond  at  the 
time  of  the  delivery  of  the  mortgage,  such  delivery  did  not  amount  to 
a  valid  assignment,  and  a  foreclosure  by  the  alleged  assignee  would 
net  convey  the  title  of  mortgagor  in  the  property. 

"Jones  vs.  Smith,  22  Mich.,  360. 

"Vann  vs.  Marbury,  100  Ala,,  438;  23  L.  R.  A.,  325. 

"Watson  vs.  Wyman,  161  Mass..  !)6. 

"Wilson  vs.  Campbell.  110  Mich.,  580;  35  L.  R.  A.,  544. 
See  also  Vann  vs.  Marbury,  100  Ala.,  438;  23  L.  R.  A.,  325. 


MORTGAGES.  279 

of  an  assignment  of  the  mortgage  will  be  constructive  notice 
of  the  assignment  to  the  mortgagor. 

As  a  general  rule,  the  recording  of  the  assignment  will  only 
be  notice  of  the  assignee's  rights  to  subsequent  purchasers, 
and  will  not  be  constructive  notice  to  the  mortgagor.89 

RIGHTS  OF  ASSIGNEE. 

An  assignee  of  a  mortgage  takes  it  subject  to  all  the  rights, 
equities  and  infirmities  existing  between  the  original  parties. 
This  is  true,  even  though  the  assignee  is  an  innocent  purchaser 
for  a  valuable  consideration.90 

This  statement  is  subject  to  the  same  exception  heretofore 
stated  in  reference  to  mortgages  securing  negotiable  paper. 

AS  A  GENERAL  BULE,  XHE  ASSIGNEE  FOB,  VALUE  OP  A 
MOBTGAGE  SECUBING  A  NEGOTIABLE  NOTE,  BEFOBE  THE 
MATUBITY  OF  THE  NOTE,  WILL  TAKE  IT  FBEE  FBOM  ALJ, 
EQUITIES  BETWEEN  THE  OBIGINAL  PABTIES. 

Many  courts  hold  that,  although  a  mortgage  given  to  se- 
cure a  negotiable  note  is  not  in  itself  negotiable,  yet,  since 
the  debt  is  the  principal  thing,  and  the  mortgage  a  security, 
equity  will  put  the  security  on  the  same  footing  as  the  prin- 
cipal and  give  the  assignee  the  same  rights  as  to  both. 

In  Carpenter  vs.  Longan,  16  Wall.  U.  S.,  271,  the  court  says: 
"The  contract  as  regards  the  note  was  that  the  maker  should 
pay  it  at  maturity  to  any  bona  fide  indorsee,  without  reference 
to  any  defenses  to  which  it  may  have  been  liable  in  the  hands 
of  the  payee.  The  mortgage  was  conditioned  to  secure  the 
fulfillment  of  that  contract.  To  let  in  such  a  defense  against 
such  a  holder  Avould  be  a  clear  departure  from  the  agreement 
of  the  mortgagor  and  mortgagee,  to  which  the  assignee  sub- 
sequently in  good  faith  became  a  party." 

'"Reed  vs.  Marble,  10  Paige.  N.  Y.,  409. 
•"Patterson  vs.  Rabb.  38  S.  C.,  138;  19  L.  R.  A.,  831. 


280  MORTGAGES. 

It  is  only  by  virtue  of  the  negotiable  character  of  the  note 
that  the  assignee  is  freed  frem  the  equities  of  the  original 
parties.  If  for  any  reason  the  note  is  non-negotiable,  or  if  it 
loses  its  negotiable  character,  this  principle  would  not  apply. 

Thus,  if  a  note  is  not  payable  to  order  or  bearer,  or  if  the 
assignment  is  made  subsequent  to  its  maturity,  the  transferee 
will  take  it  subject  to  all  equities. 

In  some  recent  cases  in  which  there  was  an  endorsement  on 
the  note  that  it  was  secured  by  a  real  estate  mortgage,  it  was 
held  that  an  endorsee  before  maturity  took  the  note,  subject 
to  the  conditions  of  the  mortgage,  and  the  mortgage  containing 
provisions  which  destroyed  the  negotiable  character  of  the 
note,  the  court  held  that  the  note  became  non-negotiable.92 

MERGER. 

It  has  already  been  stated  that  where  a  superior  and  an 
inferior  estate  meet  in  the  same  person  and  in  the  same  right 
the  inferior  estate  is  absorbed  and  merged  in  the  superior.  At 
law  when  the  equity  of  redemption  and  the  title  of  the  prop- 
erty unite  in  the  same  person  and  in  the  same  right  the  mort- 
gage will  merge  in  the  fee.93  The  reason  for  this  ruling  is 
stated  in  Stantons  vs.  Thompson,94  as  follows: 


"See  Brooke  vs.  Struthers,  110  Mich.,  562;  35  L.  R.  A..  536. 
Wilson  vs.  Campbell,  110  Mich.,  562;  35  L,.  R.  A.,  544. 
"Wlnans   vs.   VVllkle,  41   Mich.,  264. 

The  owner  of  mortgaged  premises  conveyed  them,  and  his  grantee 
assumed  and  agreed  to  pay  the  mortgage. 

The  grantee  afterwards  paid  the  mortgagee  and  took  an  assign- 
ment to  himself,  and  subsequently  assigned  the  mortgage  to  com- 
plainant, who  filed  this  bill  to  foreclose  it 

The  Supreme  Court  held  that  the  grantee,  being  under  an  obliga- 
tion to  pay  the  mortgage,  on  its  assignment  to  himself,  the  mortgage 
became  merged  in  the  fee,  and  he  could  not.  therefore,  assign  the  same 
to  a  third  party  and  confer  any  right  to  foreclose. 

The  bill  of  complaint  was  dismissed. 

MStantons  vs.  Thompson,  49  N.  H.,  272. 


MORTGAGES.  281 

"The  doctrine  of  merger  springs  from  the  fact  that  when 
the  entire  equitable  and  legal  estates  are  united  in  the  same 
person,  there  can  be  no  occasion  to  keep  them  distinct,  for, 
ordinarily,  it  could  be  of  no  use  to  the  owner  to  keep  up  a 
charge  upon  an  estate  of  which  he  was  seised  in  fee  simple; 
but  if  there  is  an  outstanding,  intervening  title,  the  reason 
for  the  merger  does  not  exist." 

The  equitable  courts,  in  many  instances,  refuse  to  enforce 
the  legal  rule,  and  hold  the  superior  and  inferior  estates  to  be 
distinct  even  though  they  unite  in  the  same  owner.  If  at  the 
time  the  estates  became  vested  in  the  same  person,  it  was  his 
intention  that  they  should  not  merge,  equity  will  regard  the 
estates  as  distinct.95  In  the  absence  of  an  express  agreement, 
the  intention  of  the  holder  may  be  gathered  from  the  acts  and 
declarations  of  the  parties,  and  where  it  is  to  the  interest  of 


^Arnold  vs.  Green,  116  X.  Y.,  566. 

This  was  an  action  to  compel  the  specific  performance  of  a  land 
contract. 

The  defendant  was  the  owner  of  certain  land  which,  at  the  tjnie  of 
making  the  contract  to  convey,  was  subject  to  a  mortgage  to  one 
Wadsworth ;  but  defendant  was  not  the  maker  of  the  mortgage  and  was 
not  personally  liable  for  mortgage  indebtedness.  The  contract  to  con- 
vey provided  that  the  property  should  be  "subject  to  all  existing  liens 
now  on  said  property."  Before  the  time  of  performance  of  contract 
to  convey,  the  Wadsworth  mortgage  came  due,  and  defendant  tried  to 
procure  an  assignment  of  it,  and,  on  refusal  of  mortgagee  to  make 
such  an  assignment,  paid  the  mortgage  and  filed  a  discharge  thereof. 
Defendant  afterwards  refused  to  carry  out  terms  of  contract,  and  after 
a  tender  of  amount  due,  this  proceeding  was  commenced.  It  was 
claimed  by  defendant  that  he  was  entitled,  as  against  plaintiff,  to  have 
the  Wadsworth  mortgage  revived,  and  that  he  was  subrogated  by  the 
payment  of  the  mortgage  to  the  rights  of  Wadsworth,  and  that,  under 
the  circumstances  the  payment  of  the  mortgage  did  not  satisfy  or 
destroy  it. 

The  court  held  that  although  the  mortgage  was  paid  and  satisfied 
in  form,  yet  in  equity  it  was  not  satisfied  in  fact,  and  did  not  merge 
in  the  fee;  that  the  payment  of  the  mortgage  operated  as  an  equitable 
assignment  by  subrogation  of  mortgagee's  rights  to  defendant;  for  the 
reason  that  his  rights  could  not  otherwise  be  adequately  protected. 
A  decree  that  defendant  convey  the  property,  subject,  however,  to  hi* 
rights  as  an  assignee  of  Wadsworth  mortgage,  was  affirmed. 


282  MORTGAGES. 

the  owner  of  the  estates  that  they  should  remain  separated  the 
law  presumes  an  intention  corresponding  with  his  interest.96 

Thus,  where  property  is  subject  to  two  or  more  mortgages, 
if  the  owner  of  the  fee  is  not  liable  for  the  mortgage  debt,  and 
if  he  purchases  the  first  mortgage,  it  will  not  be  discharged 
by  merging  in  the  fee;  since  the  effect  of  a  merger  would  be 
to  advance  the  subsequent  mortgages,  against  the  interest  of 
the  owner  of  the  fee.97 

Neither  will  the  equity  of  redemption  merge  in  the  fee  if 
there  are  intervening  and  outstanding  titles  or  liens. 

Equity  however  will  not  prevent  a  merger  when  such  action 
would  be  inequitable  and  work  an  injury  to  third  parties. 
Thus,  where  a  grantor  of  land  warranted  the  same  to  be  free 
of  incumbrances,  he  cannot  set  up  against  his  grantee  or 
privies98  a  mortgage  purchased  by  him  on  the  same  property; 
nor  can  a  grantor  with  warranty  if  he  pays  the  mortgage  en- 
force it  against  the  interest  of  his  grantee.99 

SUBROGATION. 

Subrogation  has  been  defined  as  "the  substitution  of  a  new 
for  an  old  creditor,  or  in  its  more  general  sense,  the  fact  of 
putting  by  transfer  a  person  in  the  place  of  another  or  a  thing 
in  place  of  another  thing.  By  this  transfer  the  new  creditor 
is  subrogated  to  all  the  rights  of  the  original  creditor."100  The 
doctrine  of  subrogation  is  not  founded  upon  contract  but  in 
natural  justice  and  is  enforced  in  courts  of  equity. 

The  doctrine  of  subrogation  finds  frequent  application  in 
reference  to  mortgages. 


"Ann  Arbor  Sav.  Bank  vs.  Webb,  56  Mich.,  377. 

Smith  vs.  Roberts,  91  N.  Y.,  470. 

Hanlon  vs.  Doherty,  109  Ind.,  37. 
*7Dutton  vs.  Ives.  5  Mich.,  515. 
'"See  Arnold  vs.  Green,  116  N.  Y..  566. 
"Hancock  vs.  Fleming,  103  Ind.,  533. 
!W'Knighton  vs.  Curry,  62  Ala.,  404. 


MORTGAGES.  283 

Where  one  svho  is  not  primarily  liable  for  a  mortgage  debt, 
pays  it,  in  order  to  protect  some  interest  he  may  have  in  the 
property,  he  is  subrogated  to  all  the  rights  of  the  mortgagee.101 

Frequently  a  junior  mortgagee  or  an  execution  creditor  in 
order  to  protect  his  interests  may  pay  off  some  prior  mortgage, 
in  which  event  the  party  making  the  payment  is  subrogated 
to  the  rights  and  interests  of  the  prior  mortgagee.102 

So,  where  a  surety  on  a  note  secured  by  a  mortgage  pays 
the  note  he  is  subrogated  to  the  rights  of  the  payee  and  may 
enforce  the  mortgage  against  the  mortgagor. 

A  mortgagor,  who  has  sold  the  mortgaged  premises  and 
whose  grantee  has  assumed  and  agreed  to  pay  the  mortgage,  if 
compelled  to  pay  the  mortgage  will  be  subrogated  to  the  rights 
of  the  mortgagee  and  may  enforce  the  mortgage  against  his 
grantee.103 

In  order  that  a  subrogation  may  take  place,  the  person 
making  the  payment,  must  stand  in  a  certain  relationship  to 
the  parties  or  the  property.  Courts  of  equity,  will  not,  in  the 
absence  of  an  agreement,  substitute  a  stranger  to  the  title  or 
a«n  interloper  who  pays  the  obligation,  to  the  rights  of  a 
creditor  or  mortgagee.104  It  is  only  where  the  party  making 


101Stewart  vs.  Wheeling  &  L.  E.  R.  R.  Co.,  53  Ohio  St.,  151;  29  L. 
R.  A.,  438. 

Union  Mortgage  Go.  vs.  Peters,  72  Miss.,  1058;  30  L.  R.  A.,  829. 
102Mattison  vs.  Marks,  31  Mich.,  421. 

Wilton  vs.  Mayberry,  75  Wls.,  191;  G  L.  R.  A.,  61. 
103Greenwell  vs.  Heritage,  71  Mo.,  459. 

""Deaot  VB.  Rons,  95  Mich.,  81. 

The  complainant  was  the  owner  of  certain  property,  subject  to  a 
mortgage  of  $1,022. 

An  installment  of  interest  came  due  on  this  mortgage,  and  com- 
plainant borrowed  from  the  defendant,  his  daughter,  the  sum  of  $150, 
and  paid  it  to  the  mortgagee.  Subsequently,  the  mortgagee  assigned 
the  mortgage  to  the  defendant.  The  complainant  afterwards  tendered 
defendant  the  sum  of  $1,341.62,  being  full  amount  due  under  terms  of 
mortgage.  The  defendant  refused  to  discharge  the  mortgage  unless 
she  were  repaid  sum  of  $150,  with  interest,  which  «she  advanced  to  pay 


284  MORTGAGES. 

the  payment,  is  a  surety  or  has  an  interest  in  the  premises  to 
be  protected,  or  has  an  express  agreement  to  be  subrogated, 
that  equity  will  permit  a  subrogation.105 

Subrogation  being  founded  upon  equitable  principles  will 
not  be  enforced  where  it  will  work  an  injustice.106 

the  interest.  Complainant  then  filed  this  bill,  setting  forth  the  tender 
of  money,  and  praying  for  a  discharge  of  the  mortgage. 

It  was  contended  by  defendant,  that,  on  the  payment  of  the  $150, 
she  was  subrogated  to  the  rights  of  the  mortgagee,  and  that  the  mort- 
gage still  remained  a  security  for  its  payment. 

The  court  refused  to  apply  the  principles  of  subrogation  in  this 
case,  and  held  that  the  defendant  at  the  time  of  the  payment  was  a 
stranger  to  the  title,  and,  as  such,  could  not.  by  payment  of  the  whole, 
or  any  portion  of  the  mortgage,  become  subrogated  to  the  rights  of 
the  mortgagee.  "It  is  only  where  the  person  advancing  the  money  to 
pay  debt  of  a  third  party  stands  in  the  situation  of  a  surety,  or  is 
compelled  to  pay  it  to  protect  his  own  rights,  that  a  court  of  equity 
substitutes  him  in  the  place  of  the  creditor,  without  any  agreement 
to  that  effect." 

In  other  cases,  the  demand  of  a  creditor  which  Is  paid  with  the 
money  of  a  third  person,  and  without  any  agreement  that  the  security 
shall  be  assigned  or  kept  on  foot  for  the  benefit  of  such  third  person, 
is  absolutely  extinguished. 

""Johnson  vs.  Zink,  51  N.  Y.,  333. 

Johnson,  the  owner  of  certain  property,  gave  a  mortgage  on  it  to 
one  Root  to  secure  the  payment  of  a  bond  to  which  the  mortgage  was 
collateral.  Subsequently  Johnson  sold  the  property  to  one  Comstock 
"subject"  to  the  mortgage  in  question.  The  mortgage  formed  part  of 
the  consideration  of  the  transfer,  Comstock  paying  the  price  of  the 
property,  less  the  amount  of  the  mortgage.  Comstock  afterwards  sold 
the  property  to  Mrs.  Zink.  wife  of  the  defendant,  and  agreed  to  pay 
the  mortgage  when  it  came  due.  Comstock  did  not  fulfill  this  agree- 
ment, and  defendant  then  bought  the  mortgage  and  bond,  and  com- 
menced suit  against  Johnson  on  the  bond.  Johnson  then  tendered 
defendant  the  amount  due  on  bond  and  costs,  and  requested  defendant 
to  execute  an  assignment  of  bond  and  mortgage;  this  defendant  refused 
to  do.  Johnson  then  commenced  this  proceeding  to  restrain  prosecution 
of  action  on  bond  and  for  the  subrogation  of  plaintiff  or  some  person 
nominated  by  him  to  the  right  of  the  defendant  on  payment  of  amount 
due  on  bond  and  mortgage.  The  court  held  that  on  the  transfer  of  the 
property  from  Johnson  to  Comstock  "subject"  to  the  mortgage,  the 
land  became  the  primary  fund  for  the  payment  of  the  debt,  and  John- 
son thereby  became  a  surety  for  its  payment.  Johnson  was  held  to  be 
still  liable  on  the  bond.  "Equity,  however,  requires  that  the  obligor 
(Johnson)  on  the  payment  of  the  debt  out  of  his  own  funds,  should  be 
subrogated  to  the  rights  of  the  obligee,  so  that  he  can  re-imburse  him- 
self by  a  recourse  to  the  mortgaged  premises.  This  cannot  prejudice 
the  creditors;  and  it  is  clearly  equitable  as  between  the  creditor  and 
owner  of  the  land." 

The  judgment  of  the  lower  court  granting  relief  asked  for  by 
plaintiff  was  therefore  affirmed. 

"•Kelly  vs.  Kelly.  54  Mich.,  30. 


MORTGAGES.  285 

A  subrogation  will  not  arise  when  only  a  portion  of  the 
mortgage  debt  or  claim  has  been  paid;107  or  in  favor  of  one  who 
is  primarily  liable  for  the  mortgage  debt. 

DISCHARGE  AND  RELEASE. 

The  performance  of  the  condition  of  the  mortgage  will  as  a 
general  rule  discharge  and  release  it.  The  payment  of  money 
is  usually  the  condition  of  the  mortgage,  so  that  it  may  be  said 
that  as  a  general  rule  the  payment  or  discharge  of  the  mort- 
gage debt  works  a  discharge  of  the  mortgage. 

There  are  some  exceptions  to  this  statement.  It  has  already 
been  stated  that  the  payment  of  the  mortgage  indebtedness, 
by  one  not  primarily  liable,  but  who  has  an  interest  to  protect, 
will  not  operate  as  a  discharge  of  the  mortgage,  if  such  a  dis- 
charge would  be  against  the  interest  or  contrary  to  the  inten- 
tion of  the  person  making  the  payment.108 

Neither  will  a  discharge  of  the  mortgage, indebtedness  by 
bankruptcy  proceedings  or  by  statute  of  limitations  work  a 
discharge  of  the  mortgage.109 

At  the  common  law,  the  payment  of  the  mortgage  debt 
before  maturity,  if  accepted  by  the  mortgagee  or  its  payment 
at  maturity,  discharged  the  mortgage  without  any  release; 
since  the  estate  of  the  mortgagee  being  one  on  condition  sub- 
sequent, on  performance  of  the  condition  the  land  reverts  to 
the  mortgagor  by  the  simple  operation  of  the  condition  con- 
tained in  the  mortgage.110 

A  tender  for  the  purpose  of  discharging  a  lien,  is,  when 

""Forest  Oil  Co.  Appeal.  118  Pa.  St.,  138. 
1OTWarren  vs*  Warren,  30  Vt..  530. 

See  Ante  Subrogation  and  Merger. 
'"Chamberlain  vs.  Meeder.  16  N.  H..  381. 
""Shields  vs.  Lozear.  34  N.  J.  L.,  496. 


286  MORT<;A<;KS. 

made  under  proper  circumstances,111  equivalent  to  a  per- 
formance and  will  operate  as  a  discharge  of  the  mortgage,  but 
does  not  extinguish  the  debt. 

A  tender,  however,  made  before  the  appointed  day,  is  of  no 
effect;  since  the  mortgagor  cannot  compel  the  acceptance  of 
the  money  prior  to  maturity  of  the  debt,  any  more  than  the 
mortgagee  could  enforce  payment  before  that  date. 

At  the  common  law,  after  default  the  mortgagee  became 
the  absolute  owner  of  the  property  and  a  subsequent  payment 
or  tender  of  the  amount  due  under  the  mortgage,  did  not  operate 
to  discharge  and  release  the  title  vested  in  the  mortgagee; 
since  at  that  time  the  mortgagee's  title  was  not  subject  to  any 
conditions.  Such  performance  or  tender  after  default,  how- 
ever, arrested  the  accruing  of  further  interest  and  freed  the 
debtor  from  costs;  and  equity  offered  a  remedy,  to  compel 
a  release  of  the  legal  estate.112 

'^Carnthers  vs.   Humphrey,   12   Mich.,  27O. 

The  bill  in  this  cause  was  Sled  to  foreclose  two  mortgages,  both 
dated  June  5th,  1860.  and  payable  one  year  from  date.  On  the  28th  of 
July,  1862,  defendant  Humphrey,  after  default  in  payment  at  time  fixed 
in  mortgage,  and  before  commencement  of  this  suit,  tendered  to  com- 
plainant the  fall  amount  due  on  mortgages,  which  was  refused  by 
complainant,  and,  on  trial  of  cause,  this  tender  was  set  up  as  a  dis- 
charge of  the  mortgage.  The  court  in  holding  the  tender  to  be  a  dis- 
charge of  the  mortgage,  said:  "A  mortgage  is  no  longer  in  this  State 
what  it  was  originally  at  the  common  law,  a. grant  of  land  defeasible 
upon  condition  subsequent,  and  to  become  absolute  on  failure  to  pay  at 
the  specified  day.  It  is  but  a  security  for  the  debt.  The  estate  in  the 
laud  is  still  in  the  mortgagor;  and  payment  at  any  timo  before  fore- 
closure and  sale  or  (in  case  of  foreclosure  by  advertisement)  at  any 
time  before  the  expiration  of  the  time  of  redemption — including,  of 
course,  any  legal  costs  which  may  have  been  made — will  discharge  the 
mortgage  in  the  same  manner  as  if  made  on  the  day  of  payment  men- 
tioned in  the  mortgage;  and  no  reconveyance  is  necessary  to  vest  the 
title  in  the  mortgagor  in  the  one  case  more  than  the  other.  The 
mortgage  is  therefore  but  a  lien  vipon  the  land  as  security  for  the  debt; 
and  so  far  as  relates  to  the  effect  of  a  tender,  we  think  this  lien  is 
precisely  analogous  to  that  of  a  lien  upon  or  a  pledge  of  goods  as 
security,  and,  in  such  case,  it  is  well  settled  that,  while  a  tender  does 
not  extinguish  the  debt,  nor  release  the  debtor,  it  extinguishes  the 
lien,  and  the  creditor  loses  his  right  to  all  collateral  securities." 

See  also  Lambert  vs.  Weber,  83  Mich.,  395. 
Root  vs.  Bradley.  49  Mich..  27. 

'"Parker  vs.  Boasley.  116  X.  C..  1;  33  L.  R.  A..  231. 


MORTGAGES.  287 

In  the  States  adopting  the  lien  theory,  no  estate  being 
vested  in  the  mortgagee,  the  reasoning  that  a  tender  is  of  no 
effect  after  the  estate  becomes  absolute,  is  not  applicable,  and, 
as  a  general  rule,  full  tender  after  maturity  will  discharge  the 
mortgage  lien,  the  same  as  a  tender  at  maturity.113 

REDEMPTION. 

It  has  been  stated,  that,  at  the  common  law,  after  default 
by  the  mortgagor,  the  estate  of  the  mortgagee  was  freed  from 
the  conditions  of  the  mortgage,  and  the  mortgagor  could  not 
compel  the  acceptance  of  the  mortgage  debt.  Equity,  how- 
ever, afforded  a  remedy,  whereby,  after  default,  the  mortgagor 
could  compel  the  acceptance  of  the  performance  of  the  mort- 
gage conditions  and  compel  the  mortgagee,  on  such  perform- 
ance, to  reconvey  the  mortgage  premises. 

This  equitable  right  of  the  mortgagor  to  compel  accept- 
ance of  the  performance  of  the  mortgage  conditions  after  de- 
fault, was  known  as  an  equity  of  redemption.  The  right  of 
redemption  is  an  incident  to  every  mortgage,  whether  men- 
tioned in  the  mortgage  or  not,  and  can  be  cut  off  only  by  a  valid 
foreclosure,  or  where  the  mortgagee  in  possession  acquires  title 
by  lapse  of  time.114  From  this  statement  the  student  will  at 
once  see  the  necessity  of  a  foreclosure  in  all  States  adopting 
the  common  law  theory  of  a  mortgage. 

In  the  States  accepting  the  lien  theory,  the  mortgagor,  after 
default,  is  still  the  owner  of  the  premises,  and  has  more  than 


mPotts  vs.  Plaisted,  30  Mich.,  148. 
Barnes  vs.  Boardman,  149  Mass..  106. 

See  Parker  vs.  Beasley,  116  N.  C.,  1;  33  L.  R.  A.,  231,  and  notes. 
M4Where  the  mortgagee  Avas  in  exclusive,  peaceable  and  continuous 
possession  for  over  twenty  years,  it  was  held  that  his  title  was  perfect 
by  lapse  of  time. 

Clark  vs.  Clough.  65  N.  H.,  43. 


288  MORTGAGES. 

an  equity  of  redemption,  viz.,  the  title  to  the  property,  and 
such  title  can  be  cut  off  and  transferred  to  another,  only  on 
foreclosure.  The  right  of  the  mortgagor  to  fulfil  the  conditions 
of  the  mortgage  under  the  lien  theory  is  sometimes  improperly 
called  an  equity  of  redemption.  The  mortgagor's  right  to  re- 
deem is  one  that  is  jealously  guarded  by  the  courts,  and  they 
will  carefully  watch  that  no  advantage  is  taken  of  the  borrower 
by  reason  of  his  impecuniosity  or  necessity. 

This  care  of  the  courts  is  evidenced  in  the  rule  that  where 
the  original  or  a  contemporaneous  contract  contains  a  provision 
that  the  borrower  shall  not  have  an  equity  of  redemption,  such 
provision  is  conclusively  presumed  to  be  the  result  of  an  im- 
proper advantage  of  the  mortgagors  necessities,  and  is 
invalid.115  An  agreement  subsequent  to  the  original  contract, 
whereby,  the  mortgagor  releases  his  equity  of  redemption,  will 
be  enforced  only  when  it  is  fair  in  all  respects.  ' 

The  court  will  carefully  scrutinize  such  subsequent  release, 
and  it  will  be  given  effect  only  when  it  is  found  that  no  unfair 
advantage  has  been  taken  of  the  mortgagor.116 

The  right  of  redemption  may  be  exercised  by  any  one  having 
an  interest  in  the  property  in  privity  of  title  with  the  mort- 
gagor.117 Thus,  personal  representatives,  the  assignee,  or  de- 
visees of  the  mortgagor,  a  tenant  for  life,  a  tenant  in  dower, 
a  judgment  creditor  having  a  lien  on  the  property,118  subse- 
quent incumbrancers  and  any  persons  having  a  title  or  lien  on 


"'Peugh  vs.  Davis,  96  U.  S.,  337. 

Batty  vs.  Snook.  5  Mich.,  231. 
"•Wynkoop  vs.  Cowing,  21  111.,  570. 

Holdridge  vs.  Gillespie,  2  Johns.  Chy.  (N.  1'.).  34. 
"'Grant  vs.  Duane.  9  Johns.  (N.  "i*.),  611. 

Smith  vs.  Austin,  9  Mich.,  475. 
"'Robertson  vs.  Vancleave,  129  Ind.,  217;  15  L.  R.  A..  G8. 

So  may  an  attaching  creditor. 


MORTGAGES.  289 

the  premises  in  privity  with  the  mortgagor's  estate,  may  re- 
deem.110 

REGISTRATION. 

As  between  the  parties  to  the  mortgage,  the  lien  is  created 
on  the  execution  and  delivery  of  a  valid  mortgage.120 

For  the  purpose  of  protecting  persons  other  than  the  parties 
to  the  mortgage,  who  might  be  injured  by  the  existence  of 
secret  or  unknown  conveyances  or  mortgages,  statutes  have 
been  passed  requiring  that  certain  instruments  shall  be  regis- 
tered or  recorded  in  certain  designated  offices.  The  statutes 
of  the  different  States  vary.  In  all  States  mortgages  like 
instruments  affecting  the  title  to  real  estate  must  be  recorded, 
but  the  statutes  differ  as  to  the  persons  protected. 

In  most  of  the  States  the  statutes  in  substance  provide  that 
every  conveyance  or  mortgage  of  real  estate  which  is  not 
recorded  shall  be  void  as  against  subsequent  purchasers  or 
incumbrancers  in  good  faith  for  a  valuable  consideration. 

In  other  States  the  statutes  provide  that  a  mortgage  shall 
be  void,  not  only  as  against  incumbrancers  and  purchasers, 
but  also  as  against  subsequent  creditors  or  in  the  same  States 
as  against  all  persons  except  parties  to  the  instrument,  their 
heirs  and  devisees. 

It  is  a  legal  maxim  "qui  prior  est  tempore,  potior  est  jure," 
(He  hath  the  better  title  who  is  first  in  the  order  of  time). 
This  maxim  was  given  effect  at  the  common  law  and  the 
rights  of  successive  incumbrancers  or  purchasers,  all  the 
equities  being  equal,  were  determined  by  the  order  in 

""Atwater  vs.  Manchester  Sav.  Bank,  45  Minn.,  341;  12  L.  R.  A.,  741. 
A  mortgagor  who  has  conveyed  all  his  interest  in  the  mortgaged 
premises   cannot  exercise  any   election   as   to   redemption  from   fore- 
closure sale* 

American  Freehold  Land  Mtg.  Co.  vs.  Sewell,  92  Ala.,  163;  13  L. 
R.  A.,  299. 

^Herman  vs.  Clark  (Tenn.),  39  S.  W.,  873. 


290  MORTGAGES. 

which  their  claims  arose,  even  though  the  subsequent  incum- 
brancers  or  purchasers  were  in  ignorance  of  a  prior  conveyance 
or  mortgage.122 

The  statutes  change  this  common  law  rule  and  regulate  the 
rights  and  practices  of  the  successive  purchasers,  incum- 
brancers,  and,  in  some  instances,  creditors. 

As  a  general  rule  under  the  statutes,  in  the  absence  of 
notice,  the  rights  of  the  parties  are  fixed,  not  by  the  order  of 
time  in  which  they  arise,  but  by  the  order  of  time  in  which  the 
instruments  creating  the  rights  are  recorded.123 

There  are  a  number  of  exceptions  to  this  rule,  but  ordinarily 
its  application  will  determine  the  rights  of  the  parties. 

Thus,  if  the  statute  is  complied  with  by  the  recording  of 
the  mortgage  in  the  proper  office,  the  rights  of  the  parties 
dealing  with  the  property  after  that  time  are  subsequent  to 
such  mortgage;  for  they  are  presumed  to  have  constructive 
notice  of  all  facts  contained  in  the  official  record.124  Mort- 
gages made  and  recorded  at  the  same  time  are  concurrent 
liens ;  but  if  one  of  the  mortgages  is  for  the  purchase  price  and 
is  a  part  of  the  transaction  conveying  the  property,  and  the 
other  mortgage  is  for  some  other  consideration,  the  former  will 
have  priority.125 

It  is  difficult  to  state  any  general  rule  in  reference  to  regis- 
tration of  mortgages  which  will  be  applicable  in  all  States;  for, 
as  already  pointed  out,  the  statutes  of  the  different  States 
vary.  We  may,  however,  make  the  following  statements, 
which  are  applicable  in  most  of  the  States. 

"'Trent  vs.  Hunt,  9  Exch.,  21. 
12SSchmidt  vs.  Zahrndt  (Ind.),  47  N.  E.,  335. 

Ladd  vs.  Anderson,  133  Mo.,  025. 

124Sioux  City  vs.  Singer,  49  Minn.,  301;  15  L.  R.  A.,  751. 
mAhern  vs.  White.  39  Md.,  409. 

Roane  vs.  Baker,  120  111.,  308. 


MORTGAGES.  291 

1.  If  the  mortgage  is  not  recorded,  but  the  parties  dealing 
with  the  property  have  knowledge  of  the  mortgage,  or  suffi- 
cient knowledge  to  put  them  on  inquiry,  their  rights  or  inter- 
ests in  the  property  will  be  subject  to  the  mortgage. 

Since  the  purpose  of  the  statute  is  to  protect  against  un- 
known and  secret  conveyances,  it  follows  that  if  the  purchaser 
had  actual  knowledge  of  an  unrecorded  conveyance  or  mort- 
gage, there  is  no  necessity  of  a  registration  so  far  as  he  is  con- 
cerned. One  taking  the  property  with  actual  knowledge  of  an 
unrecorded  instrument,  is  not  a  bona  fide  purchaser  or  incum- 
brancer.126 

There  is  an  exception  to  this  rule.  If  one  having  knowledge 
of  the  existence  of  an  unrecorded  instrument,  acquires  title 
from  one  without  notice  of  such  unrecorded  instrument,  he 
takes  all  the  title  and  rights  of  his  grantor,  free  from  the 
claims  arising  out  of  the  unrecorded  conveyance.127 

If  the  mortgagee  is  in  open,  notorious  and  exclusive  posses- 
sion of  the  property,  his  possession  will  be  notice  sufficient  to 
put  all  persons  dealing  with  the  property  on  inquiry  as  to  the 
nature  and  extent  of  his  rights.128 

2.  As  a  general  rule,  the  statutes  only  protect  subsequent 
purchasers  or  incumbrancers. 

In  some  of  the  States,  subsequent  incumbrancers  are 
specifically  protected  against  unrecorded  instruments.  In 
most  States,  the  statutes  provide  that  subsequent  "purchasers" 
shall  be  protected;  but  in  such  States  the  word  "purchaser"  is 
so  construed  as  to  include  a  subsequent  incumbrancer  or  as- 
signee of  a  mortgage  lease  or  any  estate. 

126Case  vs.  Erwin,  18  Mich.,  434. 

Lamb  vs.  Pierce,  113  Mass.,  72. 
127Trull  vs.  Bigelow,  16  Mass.,  406. 
^Van  Baalen  vs.  Cotney  113  Mich.,  202. 

New  vs.  Wheaton,  24  Minn.,  406. 


292  MORTGAGES. 

The  term  "purchaser"  or  "incumbrancer''  does  not  include 
a  creditor.  The  rights  of  a  subsequent  creditor,  therefore,  in 
his  debtor's  property,  are  subsequent  to  those  created  by  the 
unrecorded  instrument.  Thus,  as  a  general  rule,  if  a  creditor 
without  notice  of  a  prior  mortgage  or  other  conveyance  pro- 
cures an  attachment  or  levies  an  execution  on  his  debtor's 
property,  or  if  he  obtains  a  subsequent  lien  or  judgment,  he 
does  not  thereby  become  a  subsequent  "purchaser,"  and  the 
mortgage  is  prior  to  his  rights,  either  as  a  general  or  as  a 
judgment  creditor.129 

If  the  judgment  creditor,  however,  sells  the  property  on  an 
execution  sale,  it  is  generally  held  that  a  purchaser  at  such 
sale,  without  notice  of  an  unrecorded  mortgage  or  other  in- 
strument, will  be  protected  by  the  registration  laws  and  will 
take  the  property  as  a  bona  fide  purchaser.130 

It  has  been  pointed  out  that  in  some  States  the  registration 
laws  expressly  protect  subsequent  creditors.  In  these  States  a 
creditor,  who  by  judgment  or  by  attachment  or  by  an  execution 
obtains  a  lien  on  his  debtor's  property,  without  knowledge  of 
an  unrecorded  mortgage  or  other  instrument,  will  be  protected, 
and  his  lien  will  be  prior  to  that  created  by  the  unrecorded 
mortgage  or  other  instrument.131 

3.  The  statutes  only  protect  bona  fide  purchasers  or  in- 
cumbrancers,  for  a  valuable  consideration. 

It  is  essential  that  the  subsequent  purchaser  or  incum- 
brancer,  in  order  that  he  may  have  priority  over  the  unrecorded 
instrument,  should  have  parted  with  something  of  value.  Thus, 
a  voluntary  conveyance  or  mortgage  without  consideration, 
while  valid  between  the  parties,  is  yet  subsequent  to  the  rights 

129Herman  vs.  Clark  (Tenn.  Chy.).  39  S.  W.,  873. 

Holden  vs.  Garrett,  23  Kans.,  98. 

Columbia  Bank  vs.  Jacobs,  10  Mich.,  349. 
130Atwood  vs.  Bearss,  45  Mich.,  469. 

Contra.,  Kelly  vs.  Mills,  41  Miss.,  207. 
mMassey  vs.  Westcott,  40  111.,  160. 


MORTGAGES.  293 

of  the  grantee  or  mortgagee  of  the  unrecorded  instrument.  As 
a  general  rule,  the  giving  of  a  mortgage  for  a  pre-existing  debt 
is  not  such  a  parting  with  value  as  would  make  the  mortgagee 
a  bona  fide  incumbrancer  for  value.132 

Thus  it  was  held  that  a  mortgage  given  for  an  antecedent 
debt  acquired  no  priority  by  earlier  recording  over  a  mortgage 
previously  given  on  the  same  property.133 

FORECLOSURE. 

If  the  mortgagor  fails  to  perform  the  conditions  of  the 
mortgage,  the  mortgagee  inaj'  proceed,  in  States  adopting  the 
common  law  theory  to  cut  off  the  equity  of  redemption,  and,  in 
the  States  adopting  the  lien  theory  to  enforce  his  lien.  In  all 
States  the  result  of  a  foreclosure  is  to  apply  the  land  itself,  or 
the  proceeds  of  it  on  a  sale,  toward  the  satisfaction  of  the 
mortgage  debt,  and  to  cut  off  all  rights  of  the  mortgagor  in  the 
property.  Thus,  in  the  States  adopting  the  common  law  theory 
of  a  mortgage,  the  re&ult  of  a  foreclosure  is  to  transfer  to  the 

132Jewett  vs.  Tucker,  139  Mass.,  566. 
1S3Re  Rochester,  136  N.  Y.,  83;  19  L.  R.  A.,  161. 
Brooke  vs.  Struthers,  110  Mich.,  562;  35  L.  R.  A.,  536. 
This  is  the  rule  adopted  in  most  States.    In  a  few  States  the  dis- 
charge of  an  indebtedness  is  considered  to  be  a  sufficient  consideration 
to  make  the  creditor  a  bona  fide  purchaser. 

Stone    vs.   Welling,   14   Midi.,   513. 

This  was  a  bill  to  foreclose  a  mortgage  made  to  the  complainant 
by  one  Hart. 

After  the  making  of  the  mortgage-,  Hart  conveyed  the  property  to 
the  defendant  Welling,  in  consideration  of  the  latter  agreeing  to  sur- 
render and  discharge,  within  twelve  months,  certain  claims  and  judg- 
ments held  against  Hart. 

At  the  time  of  this  transfer,  complainant's  mortgage  was  not 
recorded  and  was  not  recorded  until  after  Welling's  deed  was  put  on 
record. 

Defendant  Welling  contended  that  he  was  a  bona  fide  purchaser 
for  value,  without  notice,  and  that  he  h^ld  the  land  free  from  com- 
plainant's mortgage. 

The  court  held  that,  in  order  that  the  defendant  Welling  might  be 
a  bona  fide  holder,  he  must  have  parted  with  something  of  value,  and 
that  the  mere  giving  of  a  contract  to  do  something  in  the  future,  did 
not  amount  to  an  actual  payment  of  value  for  the  land,  and  that 
therefore  the  defendant  Welling  was  not  a  bona  fide  purchaser  under 
the  recording  laws. 


294  MOUTGAGl.S. 

mortgagee,  or  a  purchaser,  an  estate  free  from  the  conditions 
of  the  mortgage,  and  from  the  equity  of  redemption. 

In  the  States  adopting  the  lien  theory,  the  result  of  the 
foreclosure  is  to  cut  off  all  the  title  of  mortgagor  in  the  prop- 
erty. The  process  by  which  the  equity  of  redemption  is  cut 
off,  or  the  lien  enforced,  and  the  land  subjected  to  the  payment 
of  the  mortgage  debt,  is  known  as  a  foreclosure. 

In  absence  of  special  provisions,  the  right  to  foreclose 
accrues  on  the  default  of  the  mortgagor.  Usually  the  fore- 
closure is  had  by  default  of  mortgagor,  in  payment  of  principal 
at  its  maturity;  but  the  mortgagee  may  also  foreclose  the 
mortgage  for  the  breach  of  condition  as  to  the  payment  of 
interest  and  taxes,134  for  the  amount  due  at  time  of  foreclosure. 

It  is  usual,  in  such  cases,  where  the  mortgage  is  foreclosed 
for  an  installment  of  interest,  to  sell  only  sufficient  of  the  prop- 
erty to  pay  the  amount  due,  or,  if  the  entire  property  is  sold, 
it  is  made  subject  to  the  future  installments  of  principal  and 
interest  coming  due;  and  a  foreclosure  may  be  afterwards  had 
for  the  principal  or  subsequent  installments  when  due;135  or 
the  property  is  sold  and  the  amount  due  at  the  date  of  decree 
is  paid  the  complainant,  and  an  amount  sufficient  to  pay  the 
unpaid  portion  of  the  principal  is  paid  to  the  register  of  the 
court  to  hold  or  invest  until  such  time  as  it  becomes  due  and 
payable  to  the  complainant  under  the  terms  of  the  mortgage. 

It  is  now  a  common  provision  in  mortgages  that,  on  default 
of  payment  of  interest  at  the  time  stipulated,  the  mortgagee 
may  elect  to  declare  the  entire  amount  of  the  principal  to  be 
due  and  payable  at  once.  Under  such  provision,  if  the  mort- 
gagee elects  to  declare  the  entire  amount  due,  a  foreclosure 
may  be  had  for  principal  and  interest  on  default  of  payment 

'"Mercantile  Trust  Co.  vs.  Missouri,  K.  &  T.  R.  Co.,  36  Fed.  Rep., 
221;  1  L.  «.  A.,  397. 

1JSBoyer  vs.  Chandler,  160  111.,  394;  32  L.  R.  A.,  113. 


MORTGAGES.  .     295 

of  one  installment  of  interest,  even  though  principal  would 
not  be  otherwise  due  for  a  long  period.136 

At  the  common  law  there  was  no  fixed  time  within  which 
the  mortgagee  must  foreclose.  The  English  statute  of  limita- 
tions limited  the  right  of  entry  upon  land  to  twenty  years,  and 
this  limitation  was,  by  analogy,  applied  by  the  courts  of  equity 
to  the  foreclosure  of  mortgages.  In  most  of  the  States,  this 
period  has  been  reduced,  and  in  England  the  limitation  is  now 
fixed  at  twelve  years. 

The  possession  of  the  mortgagor  after  default  for  a  period 
fixed  by  the  statute,  raises  the  presumption  that  the  mortgage 
has  been  paid ;  but  this  presumption  may  be  rebutted  by  show- 
ing positive  acts  which  amount  to  an  acknowledgment  of  the 
debt,  such  as  the  payment  of  interest,  or  promise  to  pay.137 

The  payment  of  the  interest,  or  a  part  of  the  principal,  will 
start  the  'statute  running  afresh,  and  foreclosure  may  be  -had 
within  time  fixed  by  statute  after  the  last  payment. 

The  fact  that  an  action  at  law  on  the  note  or  obligation 
accompanying  the  mortgage  is  barred  by  the  statute  of  limita- 
tions, will  not,  in  most  States,  bar  the  right  to  foreclose  the 
mortgage.  In  a  few  States  the  mortgage  lien  is  discharged 
when  the  debt  is  barred.138  In  some  States,  there  may  be  a  per- 
sonal decree  for  deficiency,  when  an  action  at  law  on  the  note 
would  be  barred  by  statute  of  limitations.139  In  other  States, 
however,  the  court  will  not  grant  a  personal  decree  when  an 
action  on  the  note  or  obligation  is  outlawed.140 

1S8Harper  vs.  Ely,  56  111.,  179. 

Bringing  suit  is  a  sufficient  notice  of  election  to  declare  the  whole 
amount  due  under  this  clause. 

Swearingen  vs.  Lahner,  93  Iowa,  147;  26  L.  R.  A.,  765. 
137Cook  vs.  Parham,  63  Ala.,  456. 

Clawson  vs.  McCune,  20  Kans.,  337. 
188Lord  vs.  Morris,  18  Gal.,  482. 

Pollock  vs.  Maison,  41  111..  516. 
138Birnie  vs.  Main,  29  Ark.,  591. 
140Hulbert  vs.  Clark,  57  Hun.,  558. 

Slingerland  vs.  Sherer,  46  Minn.,  422. 


296  MORTGAGES. 

If  the  mortgagee  is  in  possession  of  the  mortgaged  prem- 
ises, he  need  not  commence  foreclosure  proceedings  within  any 
limited  time,  but  may  keep  possession  until  the  profits  pay  the 
mortgage  debt. 

The  practice  and  methods  of  foreclosure  differ  somewhat  in 
the  various  States,  but,  generally  speaking,  there  are  three 
kinds  of  foreclosure. 

1.     STRICT  FORECLOSURE. 

t 

Strict  foreclosure  is  one  of  the  oldest  methods.  It  is  a  pro- 
ceeding in  equity,  whereby  the  complainant  obtains  a  decree 
that  the  mortgagor  pay  the  mortgage  debt  within  a  time  lim- 
ited in  the  decree,  and  that,  in  default  of  payment,  the  mort- 
gagor should  be  barred  of  all  rights  in  the  mortgaged  prem- 
ises. Under  this  method,  no  sale  is  required,  and  the  mort- 
gagee's estate  becomes  absolute  and  free  from  any  equity  of 
redemption,  on  defauk  of  payment  at  time  fixed  by  the  de- 
cree, and  without  any  further  proceedings.141 

This  method  of  foreclosure  is  a  harsh  one;  for  it  cuts  off 
all  of  the  mortgagor's  interest,  irrespective  of  the  extent  or 
value  of  property. 

Strict  foreclosure  is  not  permitted  in  most  States,  and  is 
not  adapted  to  those  States  in  which  the  lien  theory  prevails. 
In  those  States  in  which  strict  foreclosure  is  still  permitted, 
the  right  to  such  remedy  is  limited  to  those  cases  in  which  the 
value  of  the  premises  does  not  equal  the  mortgage  debt,  or 
where,  in  the  discretion  of  the  judge,  the  interest  of  the  mort- 
gagor will  not  be  prejudiced.142 

'"Ellis  vs.  Leek,  127  111.,  60;  3  L.  R.  A.,  259. 

142Moulton  vs.  Cornish,  138  N.  Y..  133;  20  L.  R.  A..  370. 

Strict  foreclosure  is  permitted  in  some  instances  in  the  following 
States:  Alabama,  Connecticut,  Illinois,  Maryland,  Massachusetts,  Min- 
nesota, New  Jersey,  New  York  and  Vermont. 


MORTGAGES.  297 

2.  BY  ENTRY  AND  POSSESSION. 

In  a  few  States,  after  default,  the  mortgagee  may  enter  and 
take  possession  of  the  mortgage  premises  and  apply  all  pro- 
ceeds on  the  mortgage  debt;  and,  if  the  mortgagor  does  not 
redeem  within  a  time  fixed  by  statute,  after  such  entry  and 
possession,  the  equity  of  redemption  is  barred  and  the  mort- 
gagee becomes  the  absolute  owner  of  the  property. 

In  a  few  States  judicial  proceedings  may  be  had,  whereby 
the  mortgagee  obtains  a  judgment  for  amount  of  the  mortgage- 
debt,  to  be  paid  within  a  limited  time,  and,  on  failure  of  the 
mortgagor  to  pay  the  judgment  at  the  time  limited,  the  mort- 
gagee has  the  right  to  enter  and  hold  property  free  from  the 
equity  or  redemption.143 

3.  FORECLOSURE  BY  SALE. 

The  most  common  method  of  foreclosing  mortgages  is  by 
sale  under  a  decree  of  the  equitable  courts,  or  by  a  sale  under 
a  power  contained  in  the  mortgage. 

(a)     SALE  UNDER  A  DECREE. 

Courts  of  equity  have,  ever  since  the  doctrine  of  equity 
redemption  was  adopted,  assumed  jurisdiction  over  the  fore- 
closure of  mortgages. 

In  some  States,  the  jurisdiction  of  courts  over  mortgage 
foreclosures  is  fixed  by  statute,  and  jurisdiction  is  sometimes 
given  to  the  law  courts.  The  usual  equitable  proceedings  are 
applicable  to  foreclosure  of  mortgages.  The  mortgagee,  or  his 
assignee,  files  a  bill  of  complaint  setting  forth  the  giving  of  the 
mortgage,  the  default  of  the  mortgagor,  and  praying  that  the 
mortgage  may  be  foreclosed  and  the  equity  of  redemption  cut 
off,  or  that  the  lien  be  foreclosed.  Upon  the  hearing,  and  on 

'"Foreclosure  by  entry  and  possession  is  permitted  only  in  a  few 
Slates. 


298  MORTGAGES. 

. 

proof  of  the  allegations  of  the  bill,  the  court  will  decree  1hat 
the  mortgagor  pay  the  amount  due  under  the  mortgage,  within 
a  certain  time,  and,  that  on  default  of  such  payment,  the  mort- 
gaged premises  shall  be  sold  and  the  proceeds  applied  on  the 
mortgage  debt. 

It  is  unnecessary,  in  a  book  of  this  character,  to  enter  into 
any  discussion  of  the  pleadings,  the  parties,  defenses,  or  method 
of  conducting  sale  in  foreclosure  proceedings.  In  many  of  the 
States,  if  the  sale  of  the  premises  does  not  produce  enough  to 
satisfy  the  mortgage  debt,  a  personal  decree  may  be  entered 
against  the  persons  responsible  for  the  amount  of  the  defi- 
ciency and  who  are  parties  to  the  foreclosure  suit.144 

If  the  premises  realize  an  amount  more  than  sufficient  to 
satisfy  the  mortgage  and  costs,  the  surplus  is  brought  into 
court  and  given  to  the  mortgagor  or  other  persons  entitled 
thereto.145 

(b)     SALE  UNDER  POWER  OF  SALE. 

Most  mortgages  provide  that  if  default  be  made  in  the  con- 
ditions of  the  mortgage,  the  mortgagee  is  authorized  to  sell  tiie 
premises  at  public  auction  and  to  execute  and  deliver  to  the 
purchaser  at  such  sale  a  conveyance  of  all  the  mortgagor's 
interest  in  the  premises.146 

In  a  number  of  States,  statutes  have  been  passed  regarding 
the  manner,  the  notice  and  place  of  sale,  under  such  power  of 
sale.  It  is  the  puipose  of  such  provisions  in  mortgages  and 

144A  personal  decree  cannot  be  entered  against  one  who  is  not  a 
defendant  in  the  foreclosure  proceeding;  neither  can  a  personal  decree 
be  entered  against  a  deceased  person  or  his  representative,  but  the 
claim  must  be  proved  up  against  the  estate  in  the  same  way  as  other 
debts. 

145Soderberg  vs.  King  County,  15  Wash..  194;  33  L.  R.  A.,  G70. 

140If  no  default  is  made  a  sale  under  the  power  does  not  pass  a 
good  title. 

Rogers  vs.  Barnes.  lf,9  Mass.,  179;  38  L.  R.  A.,  145. 


MORTGAGES.  •  299 

statutes  to  provide  a  more  expeditious  method  of  foreclosing 
mortgages  than  that  afforded  by  equity  and  not  to  abridge  or 
cut  off  the  mortgagor's  equity  of  redemption.  The  effect  of 
such  a  clause  is  to  give  the  mortgagee  an  additional  method  of 
foreclosure;  but  he  still  has  the  same  right  to  foreclose  in 
equity,  or  any  other  way.  The  power  of  sale  is  frequently 
given  in  trust  deeds,  and  in  deeds  collateral  to  some  under- 
taking of  the  grantors.  In  some  States,  the  statutes  provide 
that  after  such  sale  the  mortgagor  shall  have  a  certain  time 
within  which  to  redeem;147  in  the  absence  of  such  a  provision, 
the  sale  cuts  off  all  equity  of  redemption. 

In  those  States  in  which  the  power  of  sale  is  regulated 
by  statute,  there  must  be  a  compliance  with  the  essential 
requirements  of  the  statute.  The  failure  to  comply  with  the 
statute  will  avoid  the  sale,  even  as  against  a  purchaser  without 
notice  of  the  defect.148 

EFFECT  OF  FORECLOSURE. 

The  effect  of  a  foreclosure  is  to  cut  off  all  rights  of  the 
mortgagor  in  the  property.  The  foreclosure  will  not  confer  any 
greater  rights  upon  the  purchaser  than  belonged  to  the  mort- 
gagor, and  the  purchaser  takes  the  property  subject  to  all 
the  infirmities  in  the  title  of  mortgagor. 

Thus,  a  foreclosure  will  not  affect  a  grant  made  and 
recorded  prior  to  the  execution  of  the  mortgage;  neither  will 
the  foreclosure  affect  the  rights  of  subsequent  grantees  or 
incumbrancers,  unless  they  are  made  parties  to  the  foreclosure 
proceeding.  But  the  purchaser  at  such  sale  will,  if  the  mort- 
gage has  been  properly  foreclosed,  take  the  property  free  of  all 

147In  Michigan,  for  instance,  the  mortgagor  is  given  one  year  after 
the  foreclosure  sale  in  which  to  redeem  and  may  retain  possession  of 
the  mortgage  premises  until  the  time  of  redemption  has  expired. 

148Finlayson  vs.  Peterson,  5  N.  D.,  587;  33  L.  R.  A.,  532. 


300  MORTGAGES. 

liens  and  charges  acquired  subsequent  to  the  making  of  the 
mortgage  by  persons  who  have  actual  or  constructive  notice 
of  the  making  of  the  mortgage.149 

The  foreclosure  proceeding  does  not,  as  a  rule,  affect  the 
mortgagee's  legal  remedy  on  the  note  or  obligation  accom- 
panying the  mortgage.  Thus,  the  mortgagee  may  maintain  an 
action  on  the  note  and  a  foreclosure  at  same  time,  or  after 
foreclosure  the  mortgagee  may  recover  on  the  note  any  de- 
ciency  remaining  after  the  sale  of  the  property. 

In  a  few  States,  actions  on  the  note  and  mortgage  may  not 
be  had  simultaneously.150 

MARSHALLING  ASSETS. 

It  is  impossible,  in  a  book  of  this  character,  to  discuss  the 
manner  of  conducting,  and  the  law  relating  to  foreclosure 
sales;  but  the  student's  attention  ought  to  be  called  to  the 
doctrine  of  marshalling  assets  which  sometimes  affects  the 
order  in  which  mortgaged  property  shall  be  sold.  It  often 
happens  that  a  first  or  prior  mortgage  covers  several  pieces  of 
property,  and  that  a  subsequent  mortgage  is  a  lien  on  only  one 
of  the  pieces.  In  such  a  case,  the  doctrine  of  marshalling  is 
that  the  first  mortgage*'  must  resort,  in  the  first  instance,  for 
the  satisfaction  of  his  mortgage,  to  the  property  not  covered 
by  the  subsequent  mortgage. 

This  is  an  equitable  doctrine  and  finds  its  root  in  the  obliga- 
tion of  one  debtor  to  so  exercise  his  rights,  when  it  can  be  done 
without  loss,  that  loss  or  injustice  may  not  be  inflicted  upon 
another.151 

""Stewart  vs.  Wheeling,  &  L  E.  R.  Co.,  53  Ohio  St.,  151;  29  L.  R. 
A.,  438. 

""This  is  rule  in  New  York,  Michigan,  Iowa,  Indiana. 
""Story  Equity  Jurisprudence,  Sec.  633. 
Ball  vs.  Setzer,  33  W.  Va.,  444. 


MORTGAGES.  301 

The  doctrine  also  finds  application  in  those  cases  in  which 
property  is  mortgaged  and  is  afterwards  sold  in  separate  par- 
cels, at  different  times.  In  such  case  the  parcels  must  be 
applied  to  the  satisfaction  of  the  mortgage  in  the  inverse  order 
of  alienation.152 

"'The  reason  of  the  application  of  the  rule  to  this  class  of  cases  is 
stated  as  by  Chancellor  Kent  in  Clowes  vs.  Dickinson,  as  follows: 

*  *  *  "If  there  be  several  purchasers  in  succession  at  different 
times,  I  apprehend  that  in  that  case  there  is  no  equality,  and  no  con- 
tribution as  between  purchasers.  Thus,  for  instance,  if  there  be  a 
judgment  against  a  person  owning,  at  the  time,  three  acres  of  land,  and 
he  sells  one  acre  to  A,  the  remaining  two  acres  are  first  chargeable  in 
equity  with  the  payment  of  the  judgment  debt;  *  *  *  and  that, 
too,  whether  the  land  be  in  the  hands  of  the  debtor  himself  or  of  his 
heirs.  If  he  sells  another  acre  to  B,  the  remaining  acre  is  then  charge- 
able, in  the  first  instance,  with  the  debt  as  against  B,  as  well  as  against 
A,  and  if  it  should  prove  insufficient,  then  the  acre  sold  to  B  ought  to 
supply  the  deficiency,  in  preference  to  the  acre  sold  to  A;  because 
when  B  purchased  he  took  his  land  charged  with  the  debt  in  the  hands 
of  the  debtor,  in  preference  to  the  land  already  sold  to  A.  In  this 
respect  we  may  say  of  him  as  is  said  of  the  heirs,  he  sits  in  the  seat 
of  his  grantor,  and  must  take  the  land  with  all  its  equitable  burdens; 
it  cannot  be  in  the  power  of  the  debtor,  by  the  act  of  assigning  or  sell- 
ing his  remaining  land,  to  throw  the  burden  of  the  judgment,  or  rata- 
ble part  of  it,  back  upon  A."  *  *  * 


CHAPTER  VIII. 

TIME  OF  ENJOYMENT  OF  ESTATES. 

It  has  already  been  pointed  out  that  different  individuals 
may  have  different  interests  in  real  property  at  the  same  time; 
that  real  property  being  permanent,  it  is  possible  to  provide 
that  certain  person  or  persons  shall  enjoy  and  possess  it  imme- 
diately and  for  a  limited  time,  and  that  after  the  termination 
of  their  interest,  the  right  to  possess  the  property  shall  pass  to 
certain  other  persons  or  classes  of  persons. 

The  fact  that  it  is  possible  to  carve  out  of  a  greater  estate, 
lesser  estates,  and  to  provide  for  the  order  of  time  in  which 
the  lesser  estates  shall  be  enjoyed,  gives  rise  to  another  sub- 
division of  estates. 

Estates  as  to  the  time  of  possession  are  of  two  kinds,  viz: 
Estates  in  possession  and  estates  in  expectancy. 

AN  ESTATE  IN  POSSESSION  IS  ONE  WHICH  ENTITLES 
THE  OWNER  TO  THE  IMMEDIATE  ENJOYMENT  OF  THE 
PROPERTY. 

This  definition  is  subject  to  some  limitation;  for,  as  has 
been  stated,  the  owner  of  a  freehold  estate  who  is  not  entitled 
to  immediate  actual  possession  by  reason  of  the  non-termina- 
tion of  a  chattel  interest  in  the  property,  as  an  estate  for 
years,  is  still  regarded  as  the  owner  of  an  estate  in  possession; 
so  as  to  subject  it  to  a  claim  of  dower  and  courtesy.2 

AN  ESTATE  IN  EXPECTANCY  IS  ONE  WHICH  DOES  NOT 
ENTITLE  THE  OWNER  TO  IMMEDIATE  POSSESSION,  BUT  THE 

'See  Dower  and  Curtesy. 


TIME  OF  ENJOYMENT  OF  ESTATES.  303 

BIGHT    TO    POSSESSION    IS    POSTPONED    TO    SOME    FUTUEE 
PERIOD.3 

Estates  in  expectancy  are  divided  into  three  classes,  viz: 
Reversions,  remainders  and  executory  or  future  interests. 

REVERSIONS. 

The  right  of  alienation  is  an  incident  of  estates  in  fee  sim- 
ple; it  is  also  a  right  pertaining  to  all  other  estates,  unless 
legally  restricted. 

The  owner  of  an  estate  may  transfer  his  entire  interest  in 
the  property,  in  which  event,  he  of  course,  has  no  further  in- 
terest in  it.  But,  estates  being  devisable,  it  frequently  happens 
that  the  owner  instead  of  conveying  his  entire  interest  in  the 
property,  conveys  only  a  portion  of  it.  Thus,  the  owner  of  the 
fee  may  transfer  to  A  an  estate  for  his  life,  and  he  may  provide 
that  after  A'-a  life  estate  the  property  shall  go  to  B  for  twenty 
years. 

Now,  the  grantor  had  an  estate  in  the  property  which  en- 
titled him  and  his  heirs  to  the  enjoyment  of  the  property  for- 
•ever,  and  out  of  this  interest  he  has  only  provided  for  the  en- 
joyment of  the  property  for  A's  life  and  twenty  years  there- 
after. It  follows  that  after  subtracting  from  the  grantor's 
interest  the  estate  granted  there  remains  a  residue  or  remnant. 
In  other  words,  the  estate  in  fee  is  now  split  into  a  life  estate, 
an  estate  for  years,  and  the  remnant  or  residue  not  granted. 

If  the  grantor  in  the  instrument  containing  the  grant  makes 
no  conveyance  of  this  remnant  or  residue  or  remainder,  it  is 
still  vested  in  him;  and  on  the  termination  of  the  life  estate 
#nd  the  estate  for  years,  the  possession  reverts  to  him,  or  hia 
heirs,  by  operation  of  law,  without  any  provision  to  that  effect 
in  the  grant.  This  vested  interest  of  the  grantor  in  the  prop- 
erty granted  is  known  in  the  law  as  a  reversion. 


"Campau  vs.  Campau,  19  Mich.,  115-123. 


304  TIME  OF  ENJOYMENT  OF  ESTATES. 

It  frequently  happens,  however,  that  the  grantor,  in  the 
same  instrument  creating  the  lesser  estate,  conveys  the  residue 
or  remainder  to  some  third  person  or  persons. 

Thus,  using  the  same  example,  the  owner  in  fee  may  grant 
an  estate  to  A  for  life,  and  after  the  termination  of  the  life 
estate  to  B  for  twenty  years,  and  after  the  termination  of  B's 
estate  to  C,  in  fee. 

In  this  instance  the  grantor  has  conveyed  his  entire  in- 
terest in  the  property.  The  fee  is  now  split  into  three  parts, 
viz.,  a  life  interest  in  A,  an  estate  for  years  in  B,  and  the  resi- 
due or  remainder  in  C. 

On  the  termination  of  the  life  estate  and  estate  for  years, 
nothing  reverts  to  the  grantor,  but  the  estate  goes  to  C.  Be- 
fore the  termination  of  the  prior  estates  C's  interest  in  the 
property  is  known  as  a  remainder.  Blackstone's  definition  of 
a  reversion  is  as  follows: 

A  REVERSION  IS  THE  RESIDUE,  OB  REMNANT  OF  AN 
ESTATE,  LEFT  IN  THE  GRANTOR,  OR  HIS  HEIRS,  TO  COM- 
MENCE IN  POSSESSION  AFTER  THE  TERMINATION  OF  THE 
ESTATE  OR  ESTATES  GRANTED.4 

It  is  not  essential  that  the  grantor  should  be  seised  of  an 
estate  in  fee  simple;  a  reversion  arises  wherever  one  having  an 
estate  conveys  a  less  estate..  Thus,  one  owning  an  estate  for 
twenty  years  if  he  conveys  an  estate  for  ten  years  would  be- 
come the  owner  of  a  reversion.  It  is  essential,  however,  that 
the  grantor  has  the  right  to  alienate  or  create  the  estate 
granted. 

A  reversion  sometimes  arises  in  cases  in  which  no  actual 
grant  has  been  made.  For  instance,  in  the  States  in  which  the 
husband  after  birth  of  issue  is  entitled  to  an  estate  in  his 
wife's  property  for  his  life,  the  right  of  the  wife  after  birth  of 
issue  in  her  own  property,  during  the  life  of  her  husband,  is 

42  Bl.  Cora.,  175. 


TIME  OF  ENJOYMENT  OF  ESTATES.  305 

merely  a  reversion,  and  on  his  death  the  property  reverts  to 
her  or  her  heirs.5 

So,  where  property  has  been  set  apart  to  a  widow  as 
dower,  the  interest  of  the  persons  entitled  to  it  after  the  term- 
ination of  her  estate  is  a  reversion. 

It  would  seem  that  the  definition  of  Blackstone  would  not 
cover  this  kind  of  a  reversion,  unless  the  act  of  the  law  in 
creating  the  estate  of  husband  or  dower  could  be  considered 
as  a  grant  of  the  owner. 

We  suggest  the  following  definition: 

A  REVERSION  IS  THE  RESIDUE  OR  REMNANT  OF  AN  ES- 
TATE LEFT  IN  THE  OWNER,  AFTER  AN  ESTATE  OR  ESTATES 
LESS  THAN  THE  WHOLE  HAVE  BEEN  CARVED  OUT  OF  IT 
EITHER  BY  GRANT  OR  BY  OPERATION  OF  LAW. 

The  interest  of  the  reversioner  is  vested  and  he  may  alien- 
ate or  devise  it,  the  same  as  any  other  interest  in  real  property. 
On  the  death  of  the  owner  of  a  reversion  intestate,  his  interest 
descends  to  his  heirs. 

At  the  common  law  this  interest  descended  to  the  heirs  of 
the  owner,  existing  at  the  time  of  the  termination  of  the  prior 
estate.  That  is,  if  the  grantor  died  before  the  termination 
of  the  estate  granted,  the  reversion  descended  finally  to  the  per- 
sons who  were  his  heirs  at  the  time  of  termination  of  the 
granted  estate,  and  not  to  his  heirs  at  the  time  of  his  death. 
This  common  law  rule  has  been  changed  by  statute  in  many 
states,  so  that  the  reversion  descends  to  those  who  are  the 
heirs  of  the  owner  at  the  time  of  his  death.6 

If  the  reversion  and  the  estate  conveyed  meet  in  the  same 
person,  the  lesser  estate  merges  in  the  greater. 

'Bates  vs.  Shraeder,  13  Johns.  (N.  Y.),  260. 
'Cook  vs.  Hammond,  4  Mason,  467. 
Kellett  vs.  Shepard,  139  111.,  433. 


306  TIME  OF  ENJOYMENT  OF  ESTATES. 

RIGHTS  OF  REVERSIONER. 

The  rights  of  a  reversioner  are  the  same  as  those  of  a  re- 
mainderman, with  this  exception,  that  in  case  of  a  reversion, 
the  owner  of  the  estate  granted,  is,  to  a  certain  extent,  regarded 
as  holding  under  the  reversioner;  but,  in  case  of  a  remainder, 
the  remainderman  and  owner  of  the  particular  estate  derive 
their  title  from  the  same  grantor,  and  one  has  no  greater  right 
to  be  lord  than  the  other7 

Rent  is  sometimes  an  incident  of  an  estate  by  reversion; 
and  where  rent  is  reserved  the  right  to  receive  rent  from  the 
owner  of  the  estate  granted  passes  with  the  grant  of  the  rever- 
sion, unless  expressly  excepted.8 

If  the  owner  of  the  estate  granted  conveys  his  interest  to 
the  reversioner,  the  particular  estate  granted  would  become 
extinct  by  merging  in  the  fee.0 

It  sometimes  happens  that  while  a  fee  is  granted,  yet  there 
is  attached  a  condition  subsequent,  or  a  conditional  limitation 
by  which  it  may  be  defeated  and  revert  to  the  grantor.  In  case 
of  a  grant  of  this  kind,  there  is  always  a  possibility  that  the 
property  by  breach  of  condition  may  return  to  the  grantor,  but 
such  a  possibility  is  not  a  reversion;  it  is  a  mere  possibility  of 
reversion  or  reverter. 

A  POSSIBILITY  OF  REVERTER  IS  THAT  SPECIES  OF  A  RE- 
VERSIONARY INTEREST  REMAINING  IN  A  GRANTOR, 
AFTER  A  GRANT  OF  HIS  ENTIRE  INTEREST,  WHEN  THE 
GRANT  IS  SO  LIMITED  THAT  IT  MAY  POSSIBLY  TERMIN- 
ATE. 

It  can  hardly  be  said  that  a  possibility  of  reverter  is  an 
interest  in  real  property;  it  is  usually  regarded  as  a  mere 
naked  possibility.10 

'Williams  on  Real  Property,  250. 
8Burden  vs.  Thayer.  3  Met.  76. 
"1  Wash.  Real  Property,  63. 

"Vail  vs.  L.  I.  R.  R.  Co.,  106  N.  Y.,  2S3:  Bass  vs.  Roanoke  Nav.  Co.. 
Ill  N.  C.,  439;  19  L.  R.  A.,  247. 


TIME  OF  ENJOYMENT  OF  ESTATES.  307 

Thus,  it  has  been  held  that  it  is  not  a  possibility  connected 
with  an  interest  in  real  propertj^,  and  that  it  therefore  cannot 
be  conveyed  or  assigned  to  another.11  So,  it  has  been  held  that 
a  possibility  of  reverter  is  not  sufficient  to  support  an  action 
for  injury  to  the  property.12 

In  other  States,  however,  it  has  been  held  that  a  possibility 
of  reverter  may  be  assigned  or  transferred.13 

REMAINDERS. 

A  REMAINDER  IS  A  REMNANT  OF  AN  ESTATE  IN  LAND, 
DEPENDENT  UPON  A  PARTICULAR  PRIOR  ESTATE,  CREATED 
AT  THE  SAME  TIME,  AND  BY  THE  SAME  INSTRUMENT,  AND 
LIMITED  TO  ARISE  IMMEDIATELY  ON  THE  DETERMINATION 
OP  THAT  ESTATE,  AND  NOT  IN  ABRIDGMENT  OF  IT. 

All  analysis  of  this  definition  gives  us  the  following  propo- 
sitions. 

1.  A  REMAINDER  IS  THE  REMNANT  OF  AN  ESTATE. 

As  indicated  by  the  term,  a  remainder  is  what  remains  of 
a  greater  estate  after  subtracting  the  prior  estate  or  estates. 
In  this  regard  it  is  similar  to  a  reversion. 

2 .  A  REMAINDER  IS  DEPENDENT  UPON  A  PRIOR  PAR- 
TICULAR ESTATE. 

A  remainder  is  an  expectant  estate.  It  does  not  entitle  the 
owner  to  the  present  enjoyment  or  possession  of  property.  It 
is  only  when  there  is  a  prior  estate  that  a  remainder  may  exist; 
for,  on  the  termination  of  the  prior  estate,  the  remainder 
merges  into  an  estate  in  possession. 

The  prior  estate  is  usually  called  the  "particular  estate"  or 
"the  prior  particular  estate."  There  may  be  a  number  of  prior 

"Nicoll  vs.  N.  Y.  &  Erie  R.  R.  Co.,  12  N.  Y.,  121. 

Cook  vs.  Bisbee,  27  N.  J.  L.,  20. 
"Hopper  vs.  Barnes,  113  Cal.,  G36. 
"Slegel  vs.  Lauer,  148  Pa.  St.,  236. 


308  TIME  OF  ENJOYMENT  OF  ESTATES. 

particular  estates.  In  the  instance  given  of  a  grant  to  A  for 
life  and  to  B  for  twenty  years  and  afterward  to  C  in  fee,  as  to  C 
the  estate  of  A  and  B  are  particular  estates,  as  to  B,  A's  estate 
is  a  particular  estate,  and  C's  own  estate  is  a  remainder.  But, 
if  the  grant  be  made  to  A  to  commence  some  time  in  the  future, 
a  remainder  would  not  arise;  for  it  would  not  be  supported  by 
a  prior  estate.  A's  interest,  under  such  circumstances,  is 
known  as  a  future  interest. 

When  the  remainder  is  vested,  the  prior  particular  estate 
may  be  an  estate  for  years;  but  if  the  remainder  is  a  contingent 
freehold,  it  must  be  supported  by  a  freehold  estate. 

The  reason  of  the  rule  requiring  a  particular  estate  to  sup- 
port a  remainder  grows  out  of  the  common  law  doctrine,  that 
a  freehold  estate  cannot  be  created  to  commence  in  future.10 

By  statute  in  some  States,  a  freehold  may  now  be  created 
without  any  prior  estate.17 

'"The  rule  is  stated  by  Blackstone  as  follows:  *  *  *  "For  it  is 
an  ancient  rule  of  the  common  law,  that  an  estate  of  freehold  cannot 
be  created  to  commence  in  future;  but  it  ought  to  take  effect  presently, 
either  in  possession  or  remainder;  because  at  common  law  no  freehold 
in  lands  could  pass  without  livery  of  seisin;  which  must  operate  either 
immediately,  or  not  at  all.  It  would  therefore  be  contradictory,  if  an 
estate,  which  is  not  to  commence  until  hereafter,  could  be  granted  by 
a  conveyance  which  imparts  an  immediate  possession.  *  *  * 

"So  that,  when  it  is  intended  to  grant  an  estate  of  freehold,  whereof 
the  enjoyment  shall  be  deferred  until  a  future  time,  it  is  necessary  to 
create  a  previous  particular  estate,  which  may  subsist  till  that  period 
of  time  is  completed;  and  for  the  grantor  to  deliver  immediate  posses- 
sion of  the  land  to  the  tenant  of  this  particular  estate,  which  is  con- 
strued to  be  giving  possession  to  him  in  remainder,  since  his  estate  and 
that  of  the  particular  tenant  are  one  and  the  same  estate  in  law.  *  *  * 
The  whole  estate  passes  at  once  from  the  grantor  to  the  gi-antees.  and 
the  remainderman  is  seised  of  his  remainder  at  the  same  time  that  the 
termor  is  possessed  of  his  term.  The  enjoyment  of  it  must  indeed  be 
deferred  till  hereafter;  but  it  is  to  all  intents  and  purposes  an  estate 
commencing  in  praesenti,  though  to  be  occupied  and  enjoyed  in  future." 

"A  freehold  may  now,  by  statute,  in  the  following  States,  be 
created  to  commence  in  futuro  without  any  preceding  estate,  viz.: 

Arizona.  Arkansas.  California,  Dakota.  Georgia,  Indiana.  Iowa, 
Kentucky,  Michigan,  Missouri,  Minnesota,  Nebraska,  New  York,  Texas, 
West  Virginia,  Virginia,  Vermont,  Wisconsin. 


TIME  OF  ENJOYMENT  OF  ESTATES.  309 

3.  A  REMAINDER  IS  CREATED  BY  A  GRANT  AND  AT 
THE  SAME  TIME  AS  THE  PRIOR  PARTICULAR  ESTATE. 

A  reversion  mar  arise  by  operation  of  law ;  but  a  remainder 
arises  only  from  a  grant  or  purchase,  and  not  by  operation  of 
law  or  descent. 

If  the  grantor  at  time  of  granting  the  lesser  estate  makes  no 
conveyance  of  the  residue,  he  is  still  seised,  and  it  is  only  when 
the  residue  is  expressly  conveyed  to  another  that  a  remainder 
can  arise.  The  conveyance  of  the  residue  to  another  must  be  at 
the  same  time  as  creation  of  the  prior  estate;  for,  as  stated,  if 
not  conve}red,  a  reversion  arises  and  a  conveyance  of  the  re- 
version at  a  subsequent  time  vests  in  the  grantee  a  reversion, 
and  not  a  remainder.  So,  where  a  grantor  conveys  a  fee  to 
another,  reserving  to  himself  a  life  interest,  the  life  estate  re- 
served which  might  be  a  prior  particular  estate,  is  not  created 
at  the  same  time  as  the  estate  granted,  and  therefore  a  re- 
mainder does  not  arise.18 

4.  THE  REMAINDER  MUST  VEST  IN  THE  GRANTEE, 
EITHER  DURING  THE  CONTINUANCE  OF  THE  PRIOR  PAR- 
TICULAR ESTATE,  OR,  IMMEDIATELY  ON  ITS  DETERMINA- 
TION. 

Under  the  feudal  system,  it  was  necessary  that  there 
should  be  at  all  times  a  tenant,  in  order  that  the  services  due 
the  lord  might  be  performed.  Out  of  that  system  grew  the 
rule  that  the  freehold  should  vest  in  some  one,  or,  as  often 
expressed,  the  freehold  must  not  be  in  abeyance.  If  the  re- 
mainder does  not  vest  on  the  termination  of  the  particular 
estate,  there  would  be  a  lapse,  and  the  title  would  be  in  abey- 
ence.19 

18The  interest  of  grantee  under  circumstances  stated  in  the  text 
was  held  in  Michigan  to  be  a  vested  remainder.  Hitchcock  vs.  Simp- 
kins,  99  Mich.,  198. 

19See  post,  Contingent  Remainders,  page  319. 


310  TIME  OF   ENJOYMENT  OF  ESTATES. 

5      THE   REMAINDER   MUST  NOT   BE   IN   ABRIDGMENT   OF 
THE  PARTICULAR  ESTATE. 

The  remainder  must  not  cut  short  the  particular  estate.  It 
is  only  when  the  future  interest  is  to  commence  on  the  natural 
determination  of  a  prior  estate  that  a  remainder  arises. 

Thus,  if  the  prior  estate  is  one  for  the  life  of  A,  it  will 
naturally,  by  the  limitation  contained  in  the  grant  creating  it, 
expire  on  the  death  of  A;  but,  if  an  estate  be  granted  to  A  for 
life,  on  condition  that  if  he  marry  again  his  interest  shall  de- 
termine and  the  land  pass  to  B,  here  the  interest  of  B  is  limited 
to  commence,  independent  of  the  extent  of  the  particular  estate 
and  to  take  effect  in  possession,  if  at  all,  before  the  regular  de- 
termination of  the  life  estate,  and,  to  that  extent,  abridge  it. 

This  rule  is  changed  by  statute  in  some 'States,  so  that  a  re- 
mainder may  be  limited  on  a  contingency  which,  if  it  hap- 
pens, will  operate  to  abridge  or  determine  the  precedent 
estate.21 

KINDS  OF  REMAINDERS. 

Remainders  are  of  two  kinds;  vested  and  contingent. 

Before  denning  these  terms,  it  may  be  well  to  inquire  into 
the  meaning  of  the  terms  "vested"  and  "contingent,'*  as  used 
in  connection  with  interests  in  real  propert}'. 

If  the  owner  of  an  estate  is  entitled  by  virtue  of  his  owner- 
ship to  the  immediate  enjoyment  of  the  property,  he  is  said  to 
be  vested  in  possession.  In  such  an  instance,  the  title  and  pos- 
session are  in  the  owner. 

If  the  owner  of  the  estate  has  a  fixed  and  certain  right  to 
enjoy  the  property  at  some  future  time,  but  not  at  present,  he 
has  what  is  known  as  a  vested  interest  in  the  property;  but  he 
is  not  vested  in  possession.  In  this  instance  the  title,  but  not 
the  possession,  is  in  the  owner  of  the  future  estate. 

"See  Michigan,  Wisconsin  and  Indiana  statutes. 


TIME  OF  ENJOYMENT  OF  ESTATES.  311 

In  both  the  instances  it  will  be  noticed  that  the  estate  is 
vested  in  interest,  but  in  the  former  case  there  is  a  right  of  pos- 
session, while  in  the  latter  there  is  not. 

When  the  vested  estate  entitles  the  owner  to  possession,  it 
is  said  to  be  executed;  when  the  possession  of  the  owner  of 
the  vested  estate  is  deferred  to  a  future  time,  the  estate  is  said 
to  be  executory. 

There  are  other  instances  in  which,  while  there  is  no  present 
interest  in  the  property,  there  is  a  possibility  that,  under  cer- 
tain contingencies,  a  person  in  being,  or  to  come  into  being, 
may  become  vested  with  an  interest.  This  possibility  of  owner- 
ship, while  it  may  be  called  a  right,  is  not  a  vested  interest  in 
property,  although  it  may  some  day  develop  into  a  vested  in- 
terest. We  may  now  attempt  a  definition  of  vested  and  con- 
tingent estates. 

A  VESTED  ESTATE  IS  A  PRESENT  FIXED  INTEREST  IN 
REAL  PROPERTY  WHICH  ENTITLES  THE  OWNER  TO  ITS 
PRESENT  OR  FUTURE  POSSESSION. 

A  CONTINGENT  ESTATE  IS  ONE  WHICH  CONFERS  NO 
PRESENT  INTEREST  IN  PROPERTY,  BUT  IS  A  MERE  RIGHT 
WHICH  MAY  DEVELOP  INTO  A  VESTED  INTEREST  UPON 
THE  HAPPENING  OF  THE  CONTINGENCY  UPON  WHICH  IT  IS 
LIMITED. 

A  remainder  being  an  expectant  estate,  is  never  vested  in 
possession,  but  it  may  or  may  not  be  vested  in  interest. 

A  REMAINDER  IS  VESTED  WHEN  THE  PARTICULAR  ES- 
TATE IS  LIMITED  TO  TERMINATE  ON  THE  HAPPENING  OF 
AN  EVENT  WHICH  MUST  HAPPEN  AT  SOME  TIME,  AND 
WHICH  MIGHT  HAPPEN  BEFORE  THE  EXPIRATION  OF  THE 
REMAINDER,  AND  WHEN  BEFORE  THE  EXPIRATION  OF  THE 
PARTICULAR  ESTATE  THERE  IS  A  PERSON  IN  BEING  AND 


312  TIME  OF  ENJOYMENT  OF  ESTATES. 

ASCERTAINED   WHO   WOULD   BE   ENTITLED   TO   POSSESSION 
ON  ITS  PRESENT  DETERMINATION.22 

Thus,  if  an  estate  be  granted  to  A  for  life  and  remainder  to 
P.  in  fee,  here  A's  life  estate  must  certainly  terminate,  and 
during  the  continuance  of  A's  estate  there  is  a  fixed  person  to 
whom  the  property  will  go  on  his  death. 

In  order  that  the  remainder  may  be  vested,  there  must  be 
certain  essential  characteristics  as  to  remaindermen  and  as  to 
the  particular  estate. 

As  to  remainderman,  we  may  state  the  following  proposi- 
tions: 

1.  IN  ORDER  THAT  THE  REMAINDER  MAY  BE  VESTED, 
A    REMAINDERMAN    CAPABLE  OF  TAKING  MUST  BE  LIVING, 
OR,  IN  CASE  IT  IS  LIMITED  TO  A  CLASS  OP  PERSONS,  ONE  OF 
THE  CLASS  ANSWERING  THE  DESCRIPTION  IN  THE  GRANT 
MUST  BE  IN  EXISTENCE. 

2.  THE    PERSON    OR    PERSONS    ENTITLED    TO    THE    RE- 
MAINDER IF  LIVING  MUST,  AT  THE  COMMON  LAW,  BE  AS- 
CERTAINED DURING  THE  CONTINUANCE  OF  THE  PARTICU- 
LAR ESTATE. 

The  application  of  these  principles  is  found  in  the  follow- 
ing decisions:  If  an  estate  in  remainder  be  limited  to  the  un- 
born children  of  A,  it  is  contingent  until  A  has  a  child;  for  he 
may  never  have  any  children. 

If  an  estate  be  limited  in  remainder  to  the  children  of  A 
living  at  his  death,  until  the  death  of  A,  it  is  impossible  to  say 
which  of  his  children  shall  survive  him,  and  the  remainder  is 
contingent.23  In  such  case  the  surviving  children  of  A  are  not 

-"A  vested  remainder  in  land  is  a  fixed  interest  in  one  person  to 
take  effect  in  possession  after  a  preceding  estate  of  another  persou 
therein  is  determined." 

Paul  vs.  Frierson,  21  Fla..  529. 

See  Me  Arthur  vs.  Scott,  113  U.  S.,  340. 

^Chilcott  vs.  Hart.  23  Colo..  40;  35  L.  R.  A..  41. 

Smith  vs.  West.  103  Til..  33S. 
Corey  vs.  Springer,  138  Ind.,  506. 


TIME  OP  ENJOYMENT  OF  ESTATES.  313 

ascertained  until  his  death,  and  during  A's  life  the  children  do 
not  answer  the  description  required  in  the  grant  or  devise.2* 

In  the  case  of  a  grant  to  a  class,  some  one  of  the  class  must 
be  in  existence  before  the  estate  may  vest.  Thus,  in  a  grant  to 
A  for  life  and  remainder  to  his  children,  on  the  birth  of  A's 
first  child,  the  remainder  would  vest  in  the  child.25  In  this 
case  the  remainder  is  vested,  but  it  is  not  an  absolute  estate; 
for  it  is  liable  to  open  and  let  in  the  children  subsequently 
born.26 

But  if  the  limitation  be  to  A  for  his  life  and  remainder  to 
his  heirs,  in  this  instance  A's  heirs  would  not  be  ascertained 
until  his  death,  and,  by  the  weight  of  authority,  the  remainder 
would  be  contingent,  unless  the  word  "heirs"  could  be  con- 
strued as  meaning  children.27 

"Emison  vs.  Whittlesey,  55  Mo.,  258. 
Darnell  vs.  Barton,  75  Ga.,  377. 

Olney    vs.   Hull,  21   Pick.,  311. 

Simeon  Jones  died,  leaving  a  wife  and  six  sons.  His  will  contained 
the  following  clause:  "I  give  to  my  wife,  as  long  as  she  remains  my 
widow,  the  improvement  of  all  my  lands  stod  buildings.  *  *  * 
Should  my  wife  marry  or  die,  the  land  shall  be  equally  divided  among 
my  surviving  sons." 

Before  death  of  the  wife,  five  of  the  sons  died,  and  the  surviving 
son  claimed  the  entire  property. 

The  plaintiff  claimed  to  own  a  share  in  the  property  as  a  widow 
of  one  of  the  deceased  sons  who  died  before  his  mother. 

The  case  turned  on  whether  the  deceased  son  was  the  owner  of 
a  vested  or  contingent  remainder.  If  he  were  the  owner  of  a  vested 
remainder,  his  interest  would  descend  to  demandant,  and  this  action 
could  be  maintained. 

The  court  held  that  the  term  "surviving  sons"  meant  the  sons  sur- 
viving the  mother;  that  until  her  death  it  was  uncertain  who  would  be 
alive  to  take,  and  therefore  no  estate  vested  until  that  event  happened; 
and  that,  as  only  one  son  survived  her.  the  whole  estate  on  her  death 
vested  in  him. 

Demandant  non-suited. 

"Mercantile  Bank  vs.  Ballard,  83  Ky.,  481. 
Watson  vs.  Conrad,  38  W.  Va.,  536. 
Amos  vs.  Amos,  117  Ind.,  19. 

'"Byrnes  vs.  Stilwell,  103  N.  Y.,  453. 
Dole  vs.  Keyes,  143  Mass.,  237. 


314  TIME  OP  ENJOYMENT  OF  ESTATES. 

The  remainderman  must  be  ascertained  and  his  right  must 
be  fixed  before  the  expiration  of  the  particular  estate:  for,  at 
the  common  law,  if  the  right  became  fixed  and  the  remainder- 
man ascertained  only  at  the  time  of  the  expiration  of  the  par- 
ticular estate,  the  remainder  was  contingent.28 

Thus,  if  an  estate  be  granted  to  A  for  her  life,  and  at  the 
time  of  her  death,  to  her  children  who  survive  her,  the  re- 
mainderman would  not  be  ascertained  until  the  time  of  A's 
death,  and  not  during  the  existence  of  the  particular  estate, 
and  the  remainder,  by  weight  of  authority,  would  be  contin- 
gent.29 

"Campbell  vs.  Mason,  151  111.,  500. 

Preston  vs.  Brant,  96  Mo.,  552. 

Larmour  vs.  Rich,  18  A.,  702. 

See  Clarkson  vs.  Clarkson,  28  S.  W.,  446. 
'"Colby  vs.  Duncan,  139  Mass.,  398. 

Williams  on  Real  Property,  257. 
=*Chapin  vs.  Crew,  147  111.,  219. 

Chilcott  vs.  Hart,  23  Gal.,  40. 

Ebey  vs.  Adams,  135  111.,  80;  10  L.  R.  A..  162. 

But  see  Kansas  City  Land  Co.  vs.  Hill,  87  Tenn.,  589;  5  L.R.A.,45. 

Whiteside   vs.    Cooper,   115    V   C.,  57O. 

A  testator  left  property  to  his  wife  for  life,  and  his  will  provided 
as  follows:  "At  the  death  of  my  wife,  the  said  plantation,  with 
all  its  rights  and  interest,  I  bequeath  and  devise  to  our  seven  sons,  * 
*  *  or  such  of  them  as  may  be  living  at  their  mother's  death,  and 
to  their  heirs,  share  and  share  alike." 

The  court  held  that  the  remainder  in  the  sons  was  contingent,  and 
stated  the  reason  for  such  ruling  as  follows: 

"Fully  appreciating,  as  we  do,  the  public  policy  which  induces  the 
court  to  favor  the  early  vesting  of  estates,  we  are,  nevertheless  of  the 
opinion  that  it  would  be  doing  violence  to  the  most  liberal  rules  of 
construction  were  we  to  say  that  it  was  the  intention  of  the  devisor 
that  the  estates  limited  to  his  said  sons  should  vest  before  the  death 
of  his  widow,  the  life  tenant.  On  the  contrary,  it  was  his  evident 
purpose  that  the  entire  remainder  should  be  disposed  of  absolutely  at 
a  definite  time,  and  that  he  did  not  intend  that  the  remainder,  as  to 
any  pnrt  of  the  property,  should  become  vested  while  the  remainder 
in  the  residue  was  dependent  upon  a  contingency.  *  *  *  Under  the 
construction  we  have  put  upon  the  will,  there  can  be  no  question  that 
the  limitations  to  the  sons  were  contingent  remainders,  the  contingency 
being  that  they  should  survive  their  mother." 

Decision  of  lower  court  in  favor  of  plaintiff.     Affirmed. 


TIME  OF  ENJOYMENT  OF  ESTATES.  315 

In  many  of  the  States  the  common  law  rule  has  been 
changed  by  statute  to  this  extent,  that  a  remainder  will  be 
regarded  as  vested  when  there  is  a  person  in  being  who  takes, 
tbe  instant  the  particular  estate  expires. 

Thus,  in  Michigan,  the  statute  provides  as  follows: 

"Future  estates  are  either  vested  or  contingent;  they  are 
vested  when  there  is  a  person  in  being  who  would  have  an  im- 
mediate right  to  the  possession  of  the  lands  upon  the  ceasing 
of  the  intermediate  or  precedent  estate;  they  are  contingent 
whilst  the  person  to  whom,  or  the  event  upon  which,  they  are 
limited  to  take  effect,  remains  uncertain."30 

There  are  similar  provisions  in  New  York,  Wisconsin,  Min- 
nesota, California,  Dakota,  Georgia  and  Idaho. 

Under  the  statutes  it  has  been  held  that  when  the  re- 
maindermen are  not  determined  during  the  continuance  of  the 
particular  estate,  but  are  determined  the  instant  it  expires, 
their  estate  would  be  vested. 

That  is,  in  case  of  a  grant  to  A  for  life,  and.  at  her  death,  a 
remainder  in  fee  to  her  children  who  shall  then  survive  would 
not  be  contingent  but  vested  in  her  children  during  the  life  of 
A,  subject  to  be  defeated  if  they  did  not  survive  her.31 

As  to  the  characteristics  of  the  particular  estate  support- 
ing a  vested  remainder,  we  state  the  following  essentials: 

1.  THE  PARTICULAR  ESTATE  MUST  BE  LIMITED  TO  DE- 
TERMINE ON  THE  HAPPENING  OF  AN  EVENT  SURE  TO  HAP- 
PENS 

30HowelPs  Statutes,  Sec.  5529. 

"Croxall  vs.  Shererd,  5  Wall.  (U.  S.),  288. 

Wilson  vs.  White,  109  N.  Y.,  59. 

L'Etourneau  vs.  Henquenet,  89  Mich.,  428. 

Hovey  vs.  Nellis,  98  Mich.,  374. 

McArthur  vs.  Scott,  113  U.  S.,  340. 

Kumpe  vs.  Coons,  63  Ala.,  448. 
32Farnam  vs.  Farnam,  53  Conn..  261. 


316  TIME  OF  ENJOYMENT  OF  ESTATES. 

2.  THIS  EVENT,  SURE  TO  HAPPEN,  MUST  BE  ONE  WHICH 
MAY  HAPPEN  BEFORE  THE  EXPIRATION  OF  THE  REMAIN- 
DER. 

These  essentials  are  illustrated  in  the  following  statements: 

If  an  estate  be  granted  A  until  a  certain  village  be  incor- 
porated, remainder  to  B,  in  fee,  here  the  village  may  never  be 
incorporated  and  B  has  but  a  contingent  interest.33 

It  is  the  uncertainty  as  to  the  termination  of  the  particular 
estate  that  is  the  test.  If  that  estate  is  certain  to  determine, 
the  fact  that  the  enjoyment  or  possession  of  the  remainderman 
is  uncertain  will  not  make  his  estate  contingent.  In  other 
words,  it  is  the  uncertainty  of  the  right  to  the  estate  that  ren- 
ders it  contingent,  and  not  the  uncertainty  of  enjoyment  by  a 
designated  remainderman.34  Thus,  if  an  estate  be  granted  to 
A  for  life,  with  a  remainder  to  B  for  life,  B  will  take  a  vested 
remainder,  and  the  fact  that  B  may  die  before  A  and  never 
have  possession,  will  not  make  his  estate  contingent.  The 
fact  that  the  remainderman  may  die  before  the  expiration  of 
a  life  estate,  on  which  his  estate  is  limited,  will  not  defeat  his 
remainder.35 

If  the  essentials  stated  as  to  the  persons  and  the  particu- 
lar estate  exist,  that  is,  if  the  persons  are  living  and  are  ascer- 
tained, and  if  the  estate  is  limited  on  an  event  which  is  sure 
to  happen  and  which  may  happen  before  the  termination  of  the 
remainder,  then  in  the  person  so  ascertained  there  is  a  present 
right  to  the  future  enjoyment  of  the  estate.38 

"In  this  instance,  the  remainder  to  B  might  be  held  void  as  being 
too  remote.     Leonard  vs.  Barr,  18  N.  Y.,  96. 
34Wiggin  vs.  Perkins,  64  N.  H.,  36. 

Wood  vs.  Robertson,  113  Ind.,  323. 

Corey  vs.  Springer,  138  Ind.,  506. 
"Saxton  vs.  Webber,  83  Wis.,  617;  20  L.  R.  A.,  509. 

*>Green   vs.  Hewitt,   97  111.,   113. 

A  testator  devises  to  his  wife  land  to  be  held  by  her  "as  Ions:  as 
she  remains  my  widow;  at  the  expiration  of  that  time  the  whole,  or 


TIME  OF  ENJOYMENT  OF  ESTATES.  317 

By  the  application  of  the  rules  stated,  the  student,  it  is  be- 
lieved, may  determine  whether  or  not  there  is  in  any  given 
case  a  present  right  to  enjoy  the  future  estate;  and  he  may 
be  able  to  apply  the  test  so  often  found  in  the  books,  viz. : 

THE  PRESENT  CAPACITY  OF  TAKING  EFFECT  IN  POSSES- 
SION, IF  THE  POSSESSION  WERE  TO  BECOME  VACANT,  OR, 
AS  SOMETIMES  STATED,  THE  PRESENT  RIGHT  OF  FUTURE 
POSSESSION  WHENEVER  THE  POSSESSION  BECOMES  VA- 
CANT, DISTINGUISHES  A  VESTED  FROM  A  CONTINGENT  RE- 
MAINDER." 

The  student  will  remember  that  in  a  few  States  this  test 
is  not  applicable;  for  under  statutory  provisions,  a  remainder 
will  be  regarded  as  vested,  even  though  there  is  no  present 
fixed  right  to  enjoy  the  property,  provided  that  there  is  a  possi- 
bility of  a  right  which  will  become  fixed  the  instant  the  pre- 
ceding estate  determines. 

In  conclusion  on  the  question  as  to  whether  a  remainder  is 
vested  or  contingent,  it  may  be  said  that  the  entire  subject  is 
extremely  technical  and  arbitrary. 

whatever  remains,  to  descend  to  my  daughter  Mary  Thompson."    The 
daughter  married  and  had  one  child  and  died  before  her  mother. 

The  mother  afterwards  died,  and  this  suit  was  brought  by  one  of 
her  sisters  as  an  heir,  to  procure  a  partition  of  the  property,  claiming 
that  the  interest  of  Mary  Thompson  was  contingent,  and  that  it  did 
not  vest,  inasmuch  as  she  died  before  her  mother. 

The  court  held  that  the  remainder  was  vested  and  that  it  descended 
to  the  daughter's  heirs.  "The  estate  of  the  daughter  had  not  a  single 
element  in  it  that  distinguishes  a  contingent  from  a  vested  remainder. 
There  was  certainly  no  uncertainty  as  to  the  person  who  was  to  take; 
it  was  Mary  Thompson,  the  daughter,  clearly.  And  the  time  of  her 
taking  in  possession  was  equally  certain,  namely,  when  Elizabeth 
Thompson  ceased  to  be  the  widow  of  the  testator,  whether  it  was 
effected  by  death  or  a  second  marriage." 

"Schuyler  vs.  Hanna,  28  Neb.,  601:  11  L.  R.  A.,  321. 

Scofield  vs.  Olcott,  120  111.,  362. 

Mercantile  Bank  of  N.  Y.  vs.  Ballard,  83  N.  Y.,  481. 

Scofield  vs.  Olcott,  120  111.,  362. 

Kennard  vs.  Kennard.  63  N.  H..  303. 

See  Smith  vs.  West,  103  111.,  332. 

For  a  discussion  of  the  common  law  and  statutory  rule,  see  Gray 
on  Perpetuities,  Sec.  107. 


318  TIME  OF  ENJOYMENT  OF  ESTATES. 

The  common  law  rules  grow  out  of  the  feudal  system,  and 
out  of  a  condition  of  affairs  which  does  not  exist  in  this  coun- 
try. Yet,  the  common  law  doctrines  are  applicable  to  convey- 
ances of  the  present  day,  except  in  those  States  in  which  they 
have  been  modified  or  abrogated  by  statute. 

Not  only  are  the  rules  arbitrary  and  technical,  but  their 
application  is  often  very  difficult.  This  is  true,  particularly 

in  cases  of  devises,  for  it  is  often  difficult  to  determine  whether 

% 

the  testator  intended  the  remainder  to  vest  immediately  011  his 
death  or  at  some  future  time.39  The  intent  of  the  testator  must 
!)•?  gathered  from  the  terms  of  his  will,40  and  sometimes  differ- 
ent courts  have  interpreted  very  similar  devises  in  different 
ways. 

But  in  those  instances  in  which  it  is  doubtful  whether  the 
testator  intended  to  vest  a  present  interest  at  the  time  of  his 
death,  or  whether  he  intended  that  the  interest  should  not  vest 

"Winning   vs.    llatdorff,   5    Pa.    St.,    503. 

A  testator  devised  land  to  his  wife  for  life,  with  a  remainder  to 
his  daughter,  Elizabeth,  for  life,  and  "When  my  said  daughter  depart 
this  her  natural  life,  the  children  which  are  come  or  born  of  her  body 
shall  hold  and  possess  my  said  land.  I  do  give  and  bequeath  my  land 
(at  the  time  of  my  said  daughter's  decease)  to  the  children  which  .-ire 
come  and  born  of  and  from  her  body." 

Jacob  Ditzler,  a  son  of  said  Elizabeth,  conveyed  his  interest  in  the 
property  to  plaintiff's  ancestor.  Jacob  died  in  183G,  and  his  mother 
died  in  1841,  leaving  five  children.  Plaintiff  commenced  this  suit  to 
recover  Jacob's  interest  in  the  property,  and  obtained  a  judgment  in  the 
lower  court  for  one-sixth  of  the  land.  The  right  of  Jacob  to  convey 
depended  on  whether  his  interest  under  the  will  was  vested  or  con- 
tingent. 

The  court  held  that  it  was  the  intent  of  the  testator  that  all  the 
children  of  said  Elizabeth,  or  their  heirs,  should  have  an  interest  in 
the  property,  and  not  only  those  who  were  living  at  her  death;  that 
the  remainder  was  intended  to  vest  on  the  death  of  the  testator,  and  not 
on  the  death  of  Elizabeth;  that  Jacob  Ditzler,  eldest  son  of  Elizabeth, 
took  a  vested  remainder  in  fee  immediately  on  the  death  of  the  testa- 
tor, which  opening  to  let  in  his  brothers  and  sisters,  subsequently 
born,  left  in  him  ultimately  one-sixth  part  of  the  land  in  fee,  expectant 
on  the  death  of  his  mother,  which  passed  to  plaintiff's  ancestor  by 
his  conveyance. 

Judgment  of  the  lower  court  affirmed. 

"Bailey  vs.  Sanger,  108  Ind.,  264. 
Palms  vs.  Palms,  68  Mich.,  355. 


TIME  OF  ENJOYMENT  OF  ESTATES.  319 

until  the  happening  of  some  event,  or  at  some  future  time,  the 
doubt  will  be  resolved  in  favor  of  the  former;  for  the  reason 
that  the  law  favors  the  vesting  of  estates  at  the  earliest  prac- 
ticable moment.41 

Or,  as  expressed  by  some  courts,  a  remainder  will  never  be 
held  contingent  where  it  can  be  held  vested  in  harmony  with 
the  intention  of  the  testator.42 

A  VESTED  REMAINDER  BEING  A  PRESENT  INTEREST  IN 
PROPERTY,  MAY  BE  TRANSFERRED,  OR  IT  MAY  BE  CARVED 
INTO  LESSER  ESTATES,  AND,  ON  DEATH  OF  THE  OWNER,  IN- 
TZSTATE,  IT  DESCENDS  TO  HIS  HEIRS. 

CONTINGENT  REMAINDERS. 

A  CONTINGENT  REMAINDER  IS  ONE  WHICH  IS  LIMITED 
EITHER  TO  A  DUBIOUS  AND  UNCERTAIN  PERSON,  OR  UPON 
A  DUBIOUS  AND  UNCERTAIN  EVENT.43 

"Bigley  vs.  Watson,  98  Tenn.,  353;  38  L,  R.  A.,  GT9. 

Neilson  vs.  Bishop,  45  N.  J.  Eq.,  473. 

The  law  favors  the  vesting  of  estates,  and  when  there  is  a  doubt 
as  to  the  time  when  the  estate  should  vest,  the  earliest  will  be  taken. 

Scott  vs.  West,  63  Wis.,  529. 
"Sager  vs.  Galloway,  113  Pa.  St.,  500. 
"Davidson  vs.  Bates,  111  Ind.,  391. 

Bunting  vs.  Speek,  41  Kans.,  424;  3  L.  R.  A.,  690. 
432  Blackstone,  168. 
Fearne  divides  contingent  remainders  into  four  classes,  viz.: 

1.  Where  the  remainder  depends  entirely  upon  a  contingent  de- 
termination of  the  preceding  estate  itself;  as  if  A  makes  a  feoffment 
to  the  use  of  B  till  C  returns  from  Rome,  and  after  such  return  of  C. 
then  to  D  and  his  heirs. 

2.  Where  the  contingency  on  which  the    remainder    is    to    take 
effect,  is  independent  of  the  determination  of  the  preceding  estate;  as 
if  a  lease  be  made  to  A  for  life,  remainder  to  B  for  life,  but  if  B  dies 
before  A,  remainder  to  C,  for  life. 

3.  Where  the  remainder  is  limited  to  take  effect    on    an    event 
which,  though  sure  to  happen  some  time  or  other,  yet  may  not  hap- 
pen till  after  the  determination  of  the  particular  estate;  as  if  a  lease 
be  made  to  J.  S.  for  life,  and  after  the  death  of  ,T.  D.  the  lands  to 
remain  over  to  another  in  fee. 

4.  Where  a  remainder  is  limited  to  a  person  not  in  being,  of  not 
ascertained  at  the  time  when  such  limitation  is  made;   as  if  a  lease 
be  made  to  one  for  life,  remainder  to  the  right  heirs  of  J.  S.  who  is 
living,  or  to  the  first  son  of  B,  who  has  no  son  then  born;  or  if  an 
estate  be  limited  to  two  for  life,  remainder  to  the  survivor  in  fee. 

Fearne  on  Contingent  Remainders,  5. 


320  TIME  OP  ENJOYMENT  OF  ESTATES. 

Whether  a  remainder  is  vested  or  contingent  depends  upon 
the  characteristics  of  the  particular  estate,  and  the  persons  to 
whom  the  estate  is  limited.  The  essentials  of  a  contingent 
remainder  are  the  converse  of  those  of  a  vested  remainder. 

As  to  the  persons  to  whom  a  contingent  remainder  is  lim- 
ited, we  may  state  the  following  proposition: 

WHEN  THE  PERSON  OR  PERSONS  TO  WHOM  THE  REMAIN- 
DER IS  LIMITED  ARE  NOT  IN  ESSE,  OR,  IF  IN  ESSE,  UNAS- 
CERTAINED, IT  IS  CONTINGENT.44 

The  essentials  as  to  the  particular  estate  may  be  stated  as 
follows: 

IF  THE  REMAINDERMAN  IS  IN  ESSE  AND  ASCERTAINED, 
BUT  THE  EVENT  UPON  WHICH  THE  ESTATE  IS  LIMITED, 
MAY  NEVER  HAPPEN,  OR,  MAY  NOT  HAPPEN  UNTIL  AFTER 
THE  DETERMINATION  OF  THE  PARTICULAR  ESTATE,  THE 
REMAINDER  IS  CONTINGENT.45 

The  following  is  an  illustration  of  a  contingency  which 
must  happen,  but  which  may  not  happen  before  the  determina- 
tion of  the  particular  estate. 

If  an  estate  be  granted  to  A  for  life,  and,  after  the  death  of 
I>,  to  C  in  fee,  here  C,  on  the  death  of  A,  would  not  be  entitled 
to  possession,  unless  B  were  dead  at  the  death  of  A.  In  other 
words,  at  the  death  of  A,  unless  B  were  dead,  the  remainder 

"Sager  vs.  Galloway,  113  Pa.,  500. 

"It  is  the  uncertainty  of  the  right  of  enjoyment  which  renders  a 
remainder  contingent,  and  not  the  uncertainty  of  its  actual  enjoyment. 
Lehndorf  vs.  Cope,  122  111.,  317. 

Starneg  vs.  Hill,   112  N.  C.,  1;  22  L..   K.    A.,   SOS. 

Land  was  granted  to  a  trustee  to  hold  for  the  use  and  benefit  of 
a  married  woman  during  her  natural  life,  and  the  grant  provided  that 
if  the  woman's  husband  outlived  her,  the  trustee  should  hold  the  land 
for  his  benefit  during  the  term  of  his  natural  life. 

The  question  arose  as  to  the  nature  of  the  husband's  interest. 

It  was  contended  by  plaintiff  that  inasmuch  as  the  husband's  estate 
was  limited  on  the  death  of  his  wife,  an  event  which  must  happen, 
and  the  husband  being  in  esse,  he  took  a  vested  remainder. 

The  court  points  out  the  fallacy  of  this  reasoning,  in  that  it  fails 
to  take  into  consideration  the  fact  that  the  remainder  was  contingent 
upon  a  dubious  event,  viz.,  the  uncertainty  of  the  husband  surviving 
the  wife. 

The  remainder  was  held  to  be  contingent. 


TIME  OF  ENJOYMENT  OF  ESTATES.  321 

would  not  vest  as  required  by  the  rule  that  the  remainder  must 
vest  either  during  the  continuance  of  the  particular  estate,  or 
the  instant  it  terminates.47 

AT  THE  COMMON  LAW  A  CONTINGENT  REMAINDER  OF 
FREEHOLD  MUST  BE  SUPPORTED  BY  A  FREEHOLD  ESTATE. 

This  rule  grows  out  of  the  doctrine  that  the  freehold  shall 
not  be  in  abeyance.  A  freehold  remainder  could  not  exist, 
unless  the  freehold  passed  out  of  the  grantor  at  the  time  of  the 
grant  creating  the  particular  estate  and  the  remainder.  It 
was  necessary  that  the  freehold  should  vest  in  someone. 

A  freehold  estate  could  not  vest  in  the  owner  of  an  estate 
for  years,  or  in  the  owner  of  any  estate  less  than  a  freehold ;  for 
such  owner  had  only  a  chattel  interest;  neither  could  it  vest  in 
the  remainderman  until  the  happening  of  the  contingency,  and 
it  could  vest  only  in  the  owner  of  a  freehold  estate. 

In  the  case  of  a  vested  remainder  it  could  be  supported 
by  an  estate  for  years;  for  an  estate  for  years  being  only  a 
chattel  interest,  the  remainderman  was  deemed  to  be  seised 
of  his  estate.  But  where  the  estate  for  years,  determinable  on 
death  of  tenant,  was  for  so  long  a  term  that  in  the  ordinary 
course  of  nature  the  tenant  would  die  before  its  termination,  it 
was  held  to  be  such  an  interest  as  was  capable  of  supporting  a 
contingent  remainder. 

This  rule  as  to  contingent  remainders  has  been  changed  by 
statute  in  a  number  of  States,  so  that  a  contingent  remainder 
may  be  limited  on  an  estate  for  years.48 

If  the  remainder  is  one  for  years  it  may  in  some  instances 
be  supported  by  an  estate  for  years;  but  estates  at  will,  or  at 

*7For  further  illustration  of  the  application  of  these  rules,  see 

Emison  vs.  Whittlesey,  55  Mo.,  258. 

Farnam  vs.  Farnain,  53  Conn.,  261. 

"This  is  the  rule  in  New  York,  Michigan,  Minnesota  and  Wiscon- 
sin. 


322  TIME  OP   ENJOYMENT  OF   ESTATES. 

sufferance,  are  not  sufficient  by  reason  of  their  uncertain  dura- 
tion to  support  a  remainder. 

AT  THE  COMMON  LAW,  A  CONTINGENT  REMAINDER, 
WAS  DEFEATED  BY  THE  DESTRUCTION,  OR  EXPIRATION  OF 
THE  PARTICULAR  ESTATE  BEFORE  THE  REMAINDER 
VESTED. 

If,  for  any  reason,  the  remainder  does  not  vest  the  instant 
the  particular  estate  terminates,  the  title  is  in  abeyance,  and 
the  remainder  defeated. 

Thus,  where  the  estate  supporting  the  remainder  was  upon 
a  condition  which  was  broken  before  the  remainder  became 
rested,  and  the  particular  estate  was  thereby  defeated,  the  con- 
tingent estate  was  also  thereby  defeated. 

At  the  common  law,  if  the  tenant  of  the  particular  estate 
terminated  it  by  his  own  act,  as  by  forfeiture,  surrender  or 
merger,  it  would  defeat  the  remainder.  Thus,  it  was  possible 
for  the  particular  tenant  to  convey  his  estate  to  the  owner  of 
the  inheritance,  and  by  merger  thereby  defeat  the  intervening 
remainders. 

In  many  of  the  States  the  statutes  provide  that  no  expect- 
ant estate  can  be  defeated  or  barred  by  any  alienation  or  other 
act  of  the  owner  of  the  intermediate  or  precedent  estate,  nor 
by  any  destruction  of  such  precedent  estate  by  disseisin,  for- 
feiture, surrender,  merger  or  otherwise.40 

In  some  States  the  statutes  provide  that  no  remainder,  valid 
at  its  creation,  shall  be  defeated  by  the  determination  of  the 
precedent  estate  before  the  happening  of  the  contingency  upon 
which  the  estate  is  limited;  but  should  such  a  contingency 
afterwards  happen,  the  remainder  shall  take  effect  in  the  same 

**See  California,  Dakota,  Massachusetts,  New  York,  Michigan, 
Wisconsin,  Minnesota,  Virginia,  West  Virginia,  South  Carolina  and 
Mississippi  statutes. 


TIME  OF  ENJOYMENT  OF  ESTATES.  323 

manner  and  to  the  same  extent  as  if  the  precedent  estate  had 
continued  to  the  same  period.50 

AT  THE  COMMON  LAW,  A  CONTINGENT  REMAINDER 
COULD  NOT  BE  LIMITED  TO  TAKE  EFFECT  ON  THE  BREACH 
OF  THE  CONDITION  OF  A  FEE  ON  CONDITION  SUBSEQUENT. 

In  other  words,  the  contingency  on  which  the  estate  is  lim- 
ited must  not  operate  to  abridge  or  defeat  the  particular 
estate.  This  is  merely  a  re-statement  of  the  rule  that  the  re- 
mainder must  take  effect  in  possession  only  on  the  natural 
expiration  or  the  determination  of  the  particular  estate.51 

The  condition  attached  to  the  fee  could  only  be  taken  ad- 
vantage of  by  the  grantor  or  his  heirs,  its  breach  could  be  of 
n<«  benefit  to  the  remainderman,  and  once  the  grantor  entered 
for  the  breach,  the  property  reverted  to  him,  and  all  remainders 
would  be  defeated. 

When  the  grant  is  made  of  a  fee  on  condition,  after  deduct- 
ing the  particular  estate,  nothing  remains  in  the  grantor  ex- 
cept a  possibility  of  reverter,  and  there  is  nothing  which  the 
grantor  can  limit  over  to  another  in  the  way  of  a  remainder. 

50See  New  York,  Michigan,  Wisconsin,  Minnesota,  California,  Da- 
kota, Idaho,  Virginia,  West  Virginia,  Kentucky  and  Georgia. 

51Outlan«]    vs.    Bowen,    115    Intl.,    150. 

Joseph  Bowen,  Sr.,  granted  to  his  daughter  certain  land.  After  an 
absolute  grant  the  deed  contained  this  clause:  "The  condition  of  the 
above  deed  is  such  that  if  the  said  Rebecca  Bowen  should  die,  leav- 
ing no  child  or  children,  the  above  described  land  or  its  proceeds  is 
to  fall  back  to  the  lawful  heirs  of  Joseph  Bowen,  Sr.  After  the  making 
of  this  deed,  Rebecca  married,  and  died  without  leaving  a  surviving 
child. 

This  action  was  brought  by  the  heirs  of  Joseph  Bowen,  Sr.,  against 
the  heirs  of  Rebecca  Bowen  to  determine  the  ownership  of  the  land. 
The  heirs  of  Joseph  Bowen  claimed  that  during  the  life  of  Rebecca 
Bowen  they  had  a  valid  remainder,  and  that  on  her  death  they  be- 
came entitled  to  the  possession  of  the  property. 

The  court  held  that  the  entire,  estate  was  granted  to  Rebecca  in 
fee,  determinable  in  the  event  of  her  death  without  children;  that  the 
estate  in  the  grantee  being  in  fee,  there  was  no  estate  in  the  grantor 
out  of  which  he  could  create  a  remainder,  since  a  remainder  can  only 
be  created  out  of  the  estate  left  in  the  grantor  after  the  creation  of 
the  particular  estate;  and  that  the  rule  that  a  remainder  cannot  be 
limited  after  a  fee,  was  applicable  to  the  facts  in  this  case. 


324:  TIME  OP  ENJOYMENT  OF  ESTATES. 

But  if  the  grant  is  not  in  fee  and  is  on  a  conditional  limita- 
tion, and  the  estate  is  to  endure  until  the  happening  of  a  cer- 
tain and  fixed  event,  on  the  happening  of  the  event  the  estate 
expires  by  its  natural  limitation,  without  any  entry.  In  case 
of  a  grant  of  a  fee  upon  condition  subsequent,  the  breach  cuts 
short  a  greater  estate.  It  is  possible,  therefore,  to  limit  a  re- 
mainder upon  a  conditional  limitation  of  an  estate  less  than  a 
fee.  Thus,  a  grant  to  a  woman  "as  long  as  she  remains  my 
widow"  will  support  a  remainder.52  In  some  States,  the  stat- 
utes provide  that  a  remainder  may  be  limited  on  a  contingency 
which,  in  case  it  should  happen,  will  operate  to  abridge  or  de- 
termine the  precedent  estate;  and  that  such  a  remainder  shall 
be  construed  a  conditional  limitation,  and  shall  have  the  same 
effect  as  a  limitation  at  law.53 

AT  THE  COMMON  LAW,  THE  CONTINGENCY  UPON  WHICH 
THE  ESTATE  WAS  LIMITED,  MUST  HAVE  BEEN  LEGAL  AND 
NOT  TOO  BEMOTE. 

This  principle  is  illustrated  by  Blackstone  as  follows: 
"A  remainder  to  a  man's  eldest  son  who  hath  none  is  good, 
for  by  common  possibility  he  may  have  one;  but  if  it  be  limited 
in  particular  to  his  son  John  or  Richard,  it  is  bad,  if  he  have 
no  son  of  that  name;  for  it  is  too  remote  a  possibility  that  he 
should  not  only  have  a  son,  but  a  son  of  a  particular  name.  A 
limitation  of  a  remainder  to  a  bastard  before  it  is  born  is  not 
good."54 

raThis  principle  is  illustrated  as  follows  in  the  case  of  Brattle  Sq. 
Church  vs.  Grant,  3  Gray,  142:  "So  a  gift  to  A  until  C  returns  from 
Rome,  and  then  to  B  in  fee,  constitutes  a  valid  remainder,  because 
the  particular  estate  not  being  in  fee,  is  made  to  determine  upon  a 
fixed  and  definite  event,  upon  the  happening  of  which  it  comes  to  its 
natural  termination.  But  if  a  gift  to  A  and  his  heirs  till  C  return 
from  Rome,  then  to  B  in  fee,  the  limitation  over  is  not  good  as  a  re- 
mainder, because  the  precedent  estate,  being  an  estate  in  fee,  is 
abridged  and  brought  to  an  abrupt  termination  by  the  gift  over  on 
the  prescribed  contingency. 

C8See  Michigan,  Wisconsin  and  Indiana  Statutes. 

"2  Blackstone  Com.,   170. 


TIME  OF   ENJOYMENT  OF  ESTATES.  325 

It  is  difficult  to  state  any  rule  by  which  it  may  be  determ- 
ined in  all  cases  and  in  all  States,  when  the  possibility  on 
which,  a  remainder  is  limited  is  too  remote.  The  rule  as  sug- 
gested by  the  example  given  in  Blackstoiie,  that  there  cannot 
be  a  possibility  limited  upon  a  possibility,  has  been  practically 
discarded  by  all  the  courts,  except  that  an  estate  cannot  be 
limited  to  the  unborn  child  of  an  unborn  person,  when  the 
latter  is  to  take  the  preceding  estate.55 

We  shall  afterwards  see  that  a  limitation  has  been  placed 
on  the  right  of  grantor  or  a  devisor  to  suspend  the  right  of  his 
grantees  or  devisees  to  alienate  the  land,  and  that  the  limita- 
tions attached  to  the  grant  or  devise  are  void,  unless  they  take 
effect  (in  most  States)  within  lives  in  being  at  time  of  the  cre- 
ation, and  twenty-one  years  thereafter.  This  limitation  is 
known  as  the  Rule  against  Perpetuities.  Many  of  the  courts 
have  made  this  rule  applicable  to  contingent  remainders,  and  if 
the  remainder  is  limited  in  such  a  way  that  it  may  not  vest 
within  the  limit  stated,  or  within  the  statutory  limit,  it  will  be 
void  for  remoteness.58 

In  'some  States  gifts  to  charities  are  exempted  from  rule  as 
to  perpetuities. 

In  some  States  the  statutes  provide  that  no  remainder  shall 
be  created  on  a  life  estate  of  any  other  person  or  persons  than 
the  grantee  or  devisee  of  such  estate,  unless  such  remainder  be 
in  fee;  nor  shall  any  remainder  be  created  upon  an  estate  for 
years,  unless  it  be  for  the  whole  residue  of  the  term. 

In  some  States  the  statutes  provide  that  no  future  estate 
otherwise  valid,  will  be  void  on  the  ground  of  the  probability 

"Jackson  vs.  Brown,  13  Wend.',  442. 

Chilcott  vs.  Hart.  23  Col.,  40:  35  L.  R.  A.,  41. 

Gray  on  Perpetuities,  Sec.  205. 
MDefreese  vs.  Lake,  109  Mich.,  415;    32  L.  R.  A.,  744. 

First  Universalist  Soc.  vs.  Boland,  155  Mass.,  171,  15  L.  R.  A.,  231. 


326  TIME  OP  ENJOYMENT  OF  ESTATES. 

or  improbability  of  the  contingency  on  which  it  is  limited  to 
take  effect57 

In  a  few  States  the  statutes  provide  that  successive  estates 
for  life  shall  not  be  limited,  except  to  persons  in  being  at  the 
creation  thereof,  and  that  when  a  remainder  shall  be  limited  on 
more  than  two  successive  life  estates,  all  life  estates  subse- 
quent to  the  first  two  shall  be  void,  and,  upon  the  death  of  those 
persons,  the  remainder  shall  take 'effect  in  the  same  manner  as 
if  no  other  life  estate  had  been  limited.58 

ALTERNATE  REMAINDERS. 

It  sometimes  happens  that  after  limiting  a  remainder  on  a 
contingency  to  certain  persons,  the  grantor  or  devisor  provides 
lhat  if  the  contingency  does  not  happen,  the  remainder  shall 
go  to  some  other  person  or  persons.39  Thus,  an  estate  may  be 
giA'en  to  A  for  life,  and  if  he  have  any  issue  living  at  his 
death  then  to  such  issue  in  fee;  but  if  he  die  without  issue, 
then  to  B  in  fee.co 

In  this  instance  it  will  be  noticed  that  both  remainders  are 
contingent,  and  that  one  only  can  take  effect. 

The  moment  the  first  remainder  vests,  the  second  is  de- 
feated. Such  a  remainder  is  known  as  a  fee  with  a  double 
aspect,  or  as  an  alternate  remainder. 

AT  THE  COMMON  LAW,  A  CONTINGENT  REMAINDER  WAS 
NOT  REGARDED  AS  AN  ESTATE,  AND  WAS  INALIENABLE. 

At  the  common  law  a  contingent  remainder  was  not  re- 
garded as  an  interest  in  real  property;  but  merely  as  a  possi- 
bility of  an  interest  at  some  future  time.  While  this  possi- 

MSee  Michigan,  Minnesota,  Wisconsin,  New  York  and  Indian-^ 
statutes. 

MSee  Michigan,  New  York,  Wisconsin,  Minnesota,  California,  Da- 
kota and  Idaho. 

'"Pennington  vs.  Pennington,  70  Md.,  418;    3  L.  R.  A.,  816. 

"Willard  on  Real  Estate,  169. 


TIME  OF  ENJOYMENT  OF  ESTATES.  327 

bility  was  inalienable,  yet  it  might  be  released  to  the  owner  in 
possesion  of  an  interest  in  the  property.61  Neither  at  common 
law  could  a  contingent  remainder  be  devised.  In  many  of  the 
States  the  statutes  provide  that  a  contingent  remainder  is 
alienable,  descendible  and  devisable  in  the  same  manner  as 
estates  in  possession.02 

In  some  States,  in  the  absence  of  a  statute,  the  conveyance 
of  a  contingent  remainder  is  held  to  be  effectual  and  enforce- 
able in  equity.63  And  where  the  person  is  ascertained  who  is 
to  take  the  remainder,  if  it  becomes  vested,  it  has  been  held 
that  he  may  devise  it,  and,  in  absence  of  a  devise,  it  descends 
to  his  heirs.64 

RULE  IN  SHELLEY'S  CASE. 

"IT  IS  A  RULE  OF  LAW  WHEN  THE  ANCESTOR,  BY  ANY 
GIFT  OR  CONVEYANCE,  TAKES  AN  ESTATE  OF  FREEHOLD, 
AND  IN  THE  SAME  GIFT  OR  CONVEYANCE  AN  ESTATE  IS 
LIMITED  MEDIATELY  OR  IMMEDIATELY  TO  HIS  HEIRS  IN 
FEE  OR  IN  TAIL,  THAT  ALWAYS  IN  SUCH  CASE  'HIS  HEIRS' 
ARE  WORDS  OF  LIMITATION  AND  NOT  OF  PURCHASE."65 

To  understand  this  rule,  the  student  must  have  a  clear 
understanding  of  the  meaning  of  the  terms  "words  of  limita- 
tion" and  "words  of  purchase."  Whenever  property  is  con- 
veyed either  by  deed  or  by  will,  or  the  title  is  acquired  in  any 
manner  except  by  inheritance,  the  grantee  or  devisee  is  said 
to  be  a  purchaser  and  to  acquire  the  property  by  purchase.  The 
term  "purchase"  includes  every  lawful  method  of-  coming  to  an 
estate  by  act  of  the  parties.66  The  words  in  a  deed  or  will 

"Williams  on  Real  Property,  266. 
62L'Etourneau  vs.  Henquenet,  89  Mich.,  428. 

Wilkinson  vs.  Sherman,  45  N.  J.  Eq.,  413. 
MGrayson  vs.  Tyler,  80  Ky.,  358. 
MWash  on  Real  Property. 

Henness  vs.  Patterson,  85  N.  Y.,  91. 
""Shelley's  case,  1  Rep.,  104a. 
"Burt  vs.  Merchants  Ins.  Co.,  106  Mass.,  364. 


328  TIME  OF  ENJOYMENT  OF  ESTATES. 

which  describe  the  purchaser,  i.  e.,  the  person  who  takes  under 
the  grant  or  devise,  are  words  of  purchase. 

Words  of  limitation  are  those  which  limit  or  define  the 
estate  which  the  purchaser  acquires.  Thus,  if  land  is  granted 
to  A  and  his  heirs  forever,  the  term  '-heirs''  indicates  the  ex- 
tent of  A's  estate,  viz.,  that  lie  is  the  owner  of  a  fee  simple 
estate.  This  is  the  common  use  of  the  term.  But  if  an  estate 
be  granted  to  the  heirs  of  A,  here  the  term  is  used  to  indicate 
the  persons  to  whom  the  estate  shall  go,  and  is  therefore  a 
word  of  purchase.  With  this  explanation  we  may  now  exam- 
ine the  rule  as  stated.  If  an  estate  be  granted  to  A  for  life, 
and  on  his  decease  to  his  heirs  forever,  here  it  will  be  noticed 
is  a  case  which  comes  clearly  within  the  rule;  for  there  is  a 
grant  of  a  freehold  estate,  and  in  the  same  grant  an  estate  is 
limited  to  the  ancestors'  heirs.  Now,  if  the  term  "heirs''  is  a 
word  of  purchase,  it  indicates  the  persons  who  take  the  prop- 
erty, viz.,  a  life  estate  in  A  and  a  contingent  remainder  over  to 
his  heirs. 

But  if  the  term  "heirs"  is  a  word  of  limitation,  then  A  is 
the  only  person  who  is  designated  as  a  purchaser,  and  the 
word  "heirs"  simply  defines  and  limits  his  estates,  and  he  takes 
an  estate  in  fee  simple.67 

The  rule  in  Shelley's  case  adopted  the  latter  construction. 

Under  this  ruling,  the  heirs  of  A,  if  he  does  not  dispose  of 
the  property  during  his  life,  may  eventually  inherit  it,  but 
they  would  then  take  by  descent,  and  not  by  purchase.68 

There  is  a  difference  of  opinion  as  to  the  reasons  which 
originally  led  to  the  adoption  of  this  rule.  While  the  different 
theories  as  to  its  origin  are  interesting,  it  is  sufficient  in  a  book 
of  this  character  to  state  that  it  grew  out  of  the  system  of 
feudal  tenures  in  existence  at  the  time  of  its  adoption. 

«7Fowler  vs.  Black,  136  111..  363;  11  L.  R.  A.,  670. 
Conger  vs.  Lowe,  124  Ind.,  368;  9  L.  R.  A.,  165. 
"Browning's  Petitions,  16  R.  I.,  441;  3  L.  R.  A.,  209. 


TIME  OF  ENJOYMENT  OF  ESTATES.  329 

The  rule  is  now  recognized  as  the  common  law  rule,  and  is 
in  force  in  all  States,  in  which  it  has  not  been  changed  by 
statute.09 

THE  RULE  IN  SHELLEY'S  CASE  IS  ARBITRARY  AND  IM- 
PERATIVE, AND  IS  NOT  A  MEANS  TO  DISCOVER  THE  INTENT 
OF  THE  GRANTOR  OR  TESTATOR. 

As  often  expressed,  the  rule  in  Shelley's  case  is  a  rule  of 
property,  and  not  of  construction.  Whenever  the  term  "heirs'' 
is  used  as  a  word  of  limitation,  it  is  treated  as  conclusively 
expressing  the  intention  of  the  testator;  "w^iere  it  appears  that 
the  word  was  so  used,  the  law  inexorably  fixes  the  force  and 
meaning  of  the  instrument.  If  once  it  is  granted  that  the  word 
was  used  in  a  strict  legal  sense,  nothing  can  avert  the  opera- 
tion of  the  rule  in  Shelley's  case.  So  the  inquiry  is,  was  the 
word  used  as  one  of  limitation?"70 

If  the  word  is  used  as  one  of  limitation,  the  rule  will  apply, 
even  though  it  be  contrary  to  the  expressed  intention  of  the 
testator  or  grantor  that  the  ancestor  should  have  a  life  estate 
only.71 

In  some  States,  however,  the  rule  is  regarded  as  one  of 
construction,  and  will  yield  to  the  clean  intention  of  the  grantor 
or  testator.72 

REQUISITES. 

To  bring  any  given  case  within  the  rule,  the  following  es- 
sentials must  exist: 

First.  The  estate  granted  the  ancestor  must  be  a  free- 
hold.73 

"'Starnes  vs.  Hill,  112  N.  C.,  1;  22  L.  R.  A..  598. 
TOAllen  vs.  Craft,  109  Ind.,  476. 
"Hageman  vs.  Hageman,  12  111.,  164. 
Trumbull  vs.  Trumbull,  149  Mass.,  200. 
"Belslay  vs.  Engel,  107  111.,  182. 
"Harbster's  Estate,  133  Pa.  St.,  351. 


330  TIME  OF   ENJOYMENT  OF  ESTATES. 

Second.  The  conveyance  to  the  ancestor  and  the  limita- 
tion to  his  heirs  must  be  in  the  same  instrument. 

Third.  There  must  be  a  limitation  by  way  of  remainder, 
to  the  "heirs"  or  "heirs  of  the  body"  of  the  ancestor.  A  limita- 
tion to  the  children  of  the  ancestor  will  not  come  within  the 
rule,71  unless  used  in  sense  of  heirs.75 

Fourth.  The  interest  limited  to  the  ancestor  and  that  to 
Ris  heirs  must  have  the  same  quality.  In  other  words,  the 
estate  of  the  ancestor  may  not  be  equitable,  and  the  estate 
limited  legal ;  they  must  both  be  legal  or  both  equitable.76 

STATUTES. 

The  rule  in  Shelley's  case  has  ever  been  criticised  as  sub- 
verting the  real  intention  of  the  grantor  or  testator,  that  is, 
of  creating  an  estate  in  fee  simple  when  a  life  estate  was  in- 
tended. For  this  reason,  in  a  number  of  States  the  rule  has 
been  abrogated  by  statute.  In  some  States  the  rule  is  abol- 
ished, both  as  to  deeds  and  wills.77  In  other  States  it  has  been 
abolished  only  as  to  wills.78 

The  effect  of  the  statutes  is  to  give  a  life  estate  to  the  an- 
cestor, and  the  heirs  take  as  purchasers.79 

In  other  States  the  rule  has  been  retained  for  the  reason 
that  "it  facilitates  the  alienation  of  land  by  vesting  the  inherit- 
ance in  the  ancestor,  instead  of  allowing  it  to  remain  in  abey- 
ance until  his  decease."80 

74Oyster  vs.  Oyster,  100  Pa.  St.,  538. 

"Mason  vs.  Ammon,  117  Pa.  St.,  127. 

Mcllhinny  vs.  Mcllhinny,  137  Ind.,  411;    24  L.  R.  A.,  489. 

76Mannerbeck's  Estate,  133  Pa.  St.,  342, 
Granger  vs.  Granger,  147  Ind.,  95;  3G  L.  R.  A.,  186. 
Granger  vs.  Granger,  147  Ind.,  95;  36  L.  R.  A.,  186. 
igan,  Minnesota,  Mississippi,  Missouri,  New  York,  Tennessee,  Virginia, 
West  Virginia  and  Wisconsin. 

"Montana,  New  Hampshre,  New  Jersey,  North  Dakota,  South  Da- 
kota, Ohio  and  Washington. 

79Defreese  vs.  Lake,  109  Mich.,  415;    32  L.  R.  A.,  744. 

""Hardage  vs.  Stroope,  58  Ark.,  303. 


TIME  OP  ENJOYMENT  OF  ESTATES.  331 

EXECUTORY   INTERESTS. 

• 

The  rules  governing  the  disposition  of  real  property  which 
we  have  been  discussing  in  connection  with  the  subject  of  re- 
mainders, were  those  enforced  at  common  law  by  the  law 
courts.  These  rules  were  of  a  technical  and  arbitrary  nature, 
and  did  not  yield  to  changing  conditions  or  the  demands  for  a 
less  technical  system. 

As  has  been  stated,  it  was  not  possible  to  create  a  freehold 
estate  to  commence  in  the  future,  without  the  interposition  of 
a  prior  estate.  It  early  became  the  practice  to  grant  land  to 
a  grantee,  to  be  held  for  the  use  of  another,  and  such  a  grant, 
while  it  passed  the  title  to  the  grantee,  yet  courts  of  equity 
would  compel  him  to  hold  the  land  for  the  use  and  benefit  of 
the  persons  named. 

This  practice  became  very  common,  and  courts  of  equity 
acquired  sole  jurisdiction  over  all  uses.  These  courts  early 
manifested  a  disposition  to  regard  the  intention  of  the  parties, 
rather  than  the  technical  form  of  the  instrument,  and  they  fre- 
quently gave  effect  to  grants  in  the  way  of  uses,  which  violated 
some  of  the  technical  legal  rules.  This  liberal  tendency  was 
also  evidenced  in  connection  with  the  construction  and  enforce- 
ment of  wills. 

Out  of  the  rulings  of  the  Chancery  courts  in  connection 
with  uses  in  real  property  and  the  subsequent  development  of 
the  doctrine  of  uses  as  affected  by  statute,  and  out  of  the 
liberal  construction  of  wills,  grew  in  process  of  time  a  species 
of  interests  in  real  property  which  were  not  recognized  at  com- 
mon law.  These  interests  are  known  as  executory  interests  or 
limitations. 

AN  EXECUTORY  INTEREST  IS  .ONE  WHICH  ARISES  ON 
THE  LIMITATION  OE  A  FUTURE  INTEREST  IN  REAL  PROP 


332  TIME  OF  ENJOYMENT  OF  ESTATES. 

ERTY,   WHICH  IS  INVALID  AT  COMMON  LAW,   BUT  WHICH 
IS  VALID  IN  A  WILL  OR  IN  A  CONVEYANCE  TO  USES.82 

Executory  interests  arising  out  of  uses  are  of  two  kinds, 
viz.:  Springing  and  shifting  uses. 

At  common  law  it  was  not  possible  to  create  a  freehold 
estate  to  commence  in  the  future,  unless  it  was  limited  upon 
freehold  estates  which  would  endure  until  it  vested.  But  the 
court  of  Chancery,  in  pursuance  of  its  policy  to  regard  the  in- 
tention of  the  parties,  permitted  the  creating  of  an  estate  in 
the  future,  when  it  was  limited  in  the  way  of  a  use,  without 
being  supported  by  any  prior  estate.  Thus  a  grant  to  A  and 
his  heirs,  to  the  use  of  B  and  his  heirs  from  to-morrow,  would 
be  enforced  in  Chancery,  although  it  was  void  by  the  rules  of 
law.83 

Such  an  interest  is  known  as  a  springing  use. 

A  SPRINGING  USE,  IS  ONE  LIMITED  TO  ARISE  ON  A  FU- 
TURE EVENT,  WHICH  IS  NOT  SUPPORTED  BY  A  PRIOR  ES- 
TATE, AND  WHICH  DOES  NOT  TAKE  EFFECT  IN  DEROGATION 
OF  ANY  OTHER  INTEREST  THAN  THAT  WHICH  RESULTS  TO 
THE  GRANTOR  OR  REMAINS  IN  HIM  IN  THE  MEANTIME.84 

The  future  date  at  which  the  limitation  is  to  take  effect 
must  not  violate  the  rule  as  to  perpetuities. 

A  SHIFTING  USE  IS  ONE  WHICH  TAKES  EFFECT  IN  DERO- 
GATION OF  SOME  OTHER  ESTATE,  AND  IS  LIMITED  EX- 
PRESSLY BY  THE  DEED,  OR  IS  ALLOWED  TO  BE  CREATED  BY 
SOME  PERSONS  NAMED  IN  THE  DEED.80 

Thus,  a  grant  to  A  and  his  heirs  for  the  use  of  B  and  his 
heirs  until  C  pays  B  $500,  and  then  to  the  use  of  C  and  his 
heirs,  creates  a  valid  shifting  use. 

82Challis'  Real  Property,  138. 
""Williams  on  Real  Property,  278. 
"Bouvier  Law  Diet. 
802  Wash.  R.  P.,  574. 


TIME  OF  ENJOYMENT  OF  ESTATES.  333 

A.  shifting  use  differs  from  a  remainder,  in  that  when  it 
comes  into  effect,  it  destroys  the  preceding  estate,  whereas  a 
remainder  comes  into  effect  only  on  the  natural  determination 
of  the  prior  estate.  A  shifting  use  may  be  preceded  by  an 
estate  in  fee  simple,  but  a  remainder  may  not.  The  rule  as  to 
perpetuities  is  also  applicable  to  shifting  uses. 

A  springing  or  shifting  use  will  not  be  affected  by  the  de- 
struction of  the  prior  estate,  as  in  case  of  a  remainder. 

EXECUTORY  DEVISES. 

After  the  establishment  of  the  feudal  system  in  England, 
it  was  not  possible  to  devise  real  estate,  except  in  certain 
cities  and  boroughs  where  custom  permitted  the  making  of  a 
valid  devise.  Wills,  however,  were  used  for  the  purpose  of  de- 
vising uses.  The  testator  during  his  lifetime  would  convey  his 
property  to  another,  to  be  held  for  the  uses  named  in  the 
grantor's  will.  Courts  of  chancery  gave  effect  to  such  devises, 
thereby  permitting  the  testator  to  devise  the  use  of  land  which 
was  not  itself  devisable.  In  the  construction  of  these  devises 
the  chancery  courts  showed  great  indulgence  to  the  testator, 
and,  for  the  purpose  of  ascertaining  the  actual  intent,  gave  a 
lenient  construction  to  the  terms  of  the  instrument. 

This  practice  continued  up  to  the  time  of  the  passage  of  the 
Statute  of  Uses  in  the  reign  of  Henry  VIII.,  which  converted 
all  uses  into  legal  estates.  The  effect  of  this  statute  was  to 
prevent  the  devise  of  uses.  A  few  years  afterwards  the  Statute 
of  Wills  was  passed. 

This  statute  permitted  the  devising  of  all  land  held  in  com- 
mon socage  and  two-thirds  of  that  held  in  knight  service. 

The  Court  of  Chancery  in  interpreting  wills  made  under 
the  statute,  employed  the  same  liberal  rules  of  construction 
which  it  had  previously  applied  to  the  devises  of  uses,  and  per- 


334  TIME  OP  ENJOYMENT  OF  ESTATES. 

mitted  the  devising  of  property  in  ways  contrary  to  the  estab- 
lished legal  rules. 

AN  EXECUTORY  DEVISE  IS  SUCH  A  LIMITATION  OF  A 
FUTURE  ESTATE  OR  INTEREST  IN  LANDS  AS  THE  LAW  AD- 
MITS IN  THE  CASE  OF  WILLS,  THOUGH  CONTRARY  TO  THE 
RULES  OF  LIMITATIONS  IN  CONVEYANCES  AT  COMMON 
LAW.87 

Under  the  Statute  of  Wills  and  the  decisions  of  the  courts, 
it  became  possible  to  make  a  valid  devise  in  the  following 
ways: 

1.  To  limit  an  estate  to  commence  in  the  future,  without 
the  intervention  of  a  prior  estate.     Thus,  a  devise  to  A  to  take 
effect  six  months  after  the  testator's  death,  is  valid.     An  execu- 
tory devise  takes  effect  when  its  time  comes  and  of  its  own 
strength,  independent  of  any  prior  estate. 

2.  To  limit  a  contingent  freehold  estate  upon  an  estate  in- 
sufficient to  support  it  under  the  legal  rules. 

We  have  seen  that  a  freehold  contingent  estate  could  not 
be  supported  by  a  chattel  interest,  as  an  estate  for  years.  But 
by  a  devise,  a  freehold  contingent  estate  could  be  limited  on  an 
estate  for  years.  Thus,  a  devise  to  A  for  a  certain  number  of 
years,  and  then  to  the  unborn  son  of  B,  in  fee,  is  valid. 

3.  To  limit  a  fee  simple  or  less  estate  after  a  fee  simple.88 
As  stated  heretofore,  an  estate  could  not  be  limited  at  law  to 
take  effect  in  derogation  of  the  prior  estate.    But  by  devise  a 
fee  may  be  limited  upon  a  contingency  which  would  cut  short 
the  prior  estate.     Thus,  a  devise  to  A  and  his  heirs,  but  in 
case  A  dies  before  he  is  twenty-one  years  of  age,  then  to  B 
and  his  heirs,  is  valid  as  an  executory  devise. 

872  Black.  Com.,  172. 

88 Armstrong  vs.  Douglass,  89  Term.,  219;  10  L.  R.  A.,  85. 


TIME  OF   ENJOYMENT  OF  ESTATES.  335 

From  these  instances  we  may  summarize  the  distinction 
between  an  executory  devise  and  a  remainder  as  follows: 

An  executory  devise  is  created  by  a  will;  a  remainder  is 
created  by  a  grant  or  by  a  will.  A  remainder  requires  a  prior 
estate  to  support  it;  an  executory  devise  does  not.  A  remain- 
der cannot  be  limited  after  an  estate  in  fee  on  condition;  an 
executory  devise  may. 

Another  distinction  lies  in  the  fact  that, a  remainder  may 
be  defeated  by  the  destruction  of  the  prior  estate  before  the 
vesting  of  the  remainder;  an  executory  devise  is  indestructible. 

AN  EXECUTORY  INTEREST  IN  REAL  PROPERTY  IS  NOW 
REGARDED  AS  AN  ESTATE,  AND  DESCENDS  AND  IS  ALIEN- 
ABLE AS  OTHER  ESTATES. 

At  the  common  law  an  executory  interest  was  regarded  as 
a  possibility  coupled  with  an  interest,  and  could  be  transferred 
when  the  person  who  would  take  was  in  esse  and  ascertained. 
Under  the  statutes  an  executory  interest  may  now  be  trans- 
ferred and  devised  and  descends  the  same  as  a  vested  estate, 
subject,  of  course,  to  the  contingency  upon  which  it  is  limited. 

CONSTRUCTION  OF  LIMITATIONS. 

A  devise  will  vest  on  the  death  of  the  testator  unless  it 
clearly  appears  that  it  was  the  testator's  intention  that  it 
should  vest  at  some  future  time. 

In  those  cases  in  which  the  devise  would  fail,  if  not  execu- 
tory, the  courts  will  often  take  advantage  of  slight  circum- 
stances to  hold  the  devise  to  be  executory.  Thus,  where,  at 
the  time  of  making  the  will  and  at  the  time  of  the  testator's 
death,  there  is  no  person  in  esse  who  could  take,  it  has  been 
held  that  it  was  the  testator's  intention' that  the  devise  should 
be  executory.  No  devise  will  be  held  to  be  executory  if  it  can 
take  effect  as  a  remainder.  And  if  a  devise  once  takes  effect 


336  TIME  OF  ENJOYMENT  OF  ESTATES. 

as  a  remainder,  it  can  never  be  construed  to  be  an  executory  de- 
vise. 

RULE   AS   TO   PERPETUITIES. 

It  has  always  been  the  policy  of  the  law  to  favor  the  free 
and  unembarrassed  disposition  of  real  property. 

The  fact  that  a  testator  might  create  an  estate  to  commence 
at  any  time  in  the  future  operated  to  make  the  land  inalien- 
able during  the  period  allowed  for  the  contingency  to  happen. 
Hence,  there  arose  the  necessity  of  fixing  some  period  limiting 
the  time  in  which  the  devise  must  take  effect.  Out  of  this 
necessity  grew  the  rule  as  to  perpetuities  which  was  adopted 
at  an  early  date  by  the  English  judges.  This  rule  may  be 
stated  as  follows: 

ALL  LIMITATIONS,  BY  WAY  OF  EXECUTORY  DEVISE, 
WHICH  MAY  NOT  TAKE  EFFECT  WITHIN  THE  TERM  OF  A 
LIFE  OB,  LIVES  IN  BEING  AT  THE  DEATH  OF  THE  TESTATOR 
AND  TWENTY-ONE  YEARS  AFTERWARDS,  AS  A  TERM  IN 
GROSS,  OR,  IN  CASE  OF  A  CHILD  EN  VENTRE  SA  MERE, 
TWENTY-ONE  YEARS  AND  NINE  MONTHS,  ARE  VOID  AS  TOO 
REMOTE  AND  TENDING  TO  CREATE  PERPETUITIES.89 

The  limitation  must  not  only  be  capable  of  taking  effect 
within  the  time  limited,  but  it  must  of  necessity  take  effect 
within  that  time.  If  the  event  upon  which  the  limitation  is 
to  take  effect  is  one  which  may  not  possibly  happen  within 
the  period  limited,  the  devise  is  too  remote.00 

89Brattle  Sq.  Church  vs.  Grant,  3  Gray,  142. 
"Brattle  Sq.  Church  vs.  Grant,  3  Gray,  142. 

Welsh  vs.  Foster,  12  Mass.,  97. 

Mandelbaum  vs.  McDonnell,  29  Mich.,  78. 

For  instances  of  too  remote  limitations,  see 

Armstrong  vs.  Douglass,  89  Tenn.,  219;  10  L.  R.  A.,  85. 

First  Universalist  Society  vs.  Boland,  155  Mass.,  171. 

For  valid  limitations,  see 

Saxton  vs.  Webber,  83  Wis.,  617;    20  L.  R.  A.,  509. 

Hope  vs.  Brewer,  136  N.  Y.,  126;  18  L.  R.  A.,  458. 


TIME  OF  ENJOYMENT  OF  ESTATES.  337 

In  some  States  statutes  have  been  passed  fixing  the  period 
of  limitation  at  two  lives  in  being.91 

If  the  limitation  is  too  remote  the  prior  limitation  takes 
effect  as  if  there  were  no  subsequent  limitation. 

APPLICATION  OF  RULE. 

The  rule  as  to  perpetuities  is  not  applicable  to  vested  in- 
terests.92 Neither  is  it  applicable  to  a  limitation  which  per- 
mits the  present  owner  to  become  the  owner  in  fee  or  alienate 
the  property,  and  thus  destroy  the  limited  estate  and  defeat  the 
limitation.93  Thus,  a  limitation  after  an  estate  tail  does  not 
come  within  the  rule.94 

This  rule  is  applicable  to  all  contingent  equitable  estates 
and  to  all  contingent  interests,  including  contingent  remaind- 
ers, and  to  powers  which  may  be  exercised  beyond  the  time 
fixed  by  the  rule.  The  rule  is  not,  as  a  general  rule,  applica- 
ble to  charitable  uses.95 


•'See  New  York,  Wisconsin  and  Michigan  statutes. 
"Lawrence  Estate,  136  Pa.  St.,  354;  11  L.  R.  A.,  85. 
"Mifflin's  Appeal,  121  Pa,  St.,  205;  1  L.  R.  A,,  453. 
"Gray  on  Perpetuities,  Sec.  203. 
"Alden  vs.  St.  Peters  Parish,  158  111.,  631;  30  L.  R.  A.,  232. 

Webster  vs.  Wiggin,  19  R.  L,  73;  28  L.  R.  A.,  510. 

Mills  vs.  Davison,  54  N.  J.  Eq.,  659;  35  L.  R.  A.,  113. 

But  See  Penny  vs.  Croul,  76  Mich.,  471;  5  L.  R.  A..  858. 


CHAPTER  IX. 

JOINT  ESTATES. 

Any  of  the  estates  which  we  have  been  considering  may  be 
owned  by  one  person  or  by  a  number  of  persons.  Such  owners 
may  have  different  rights  and  relations  to  each  other.  With 
reference  to  the  number  of  owners,  estates  are  divided  into 
estates  in  severally  and  joint  estates.  Joint  estates  are  again 
divided  into  joint  tenancies,  estates  by  entireties,  estates  in 
coparcenery,  estates  in  common,  and  partnership  estates.  This 
division  has  no  relation  to  the  nature  of  the  estate,  but  relates 
solely  to  the  number  and  relation  of  the  owners. 

ESTATES  IN  SEVERALTY. 

AN  ESTATE  IN  SEVERALTY  IS  ONE  WHICH  IS  OWNED  BY 
A  SINGLE  INDIVIDUAL  OB  BY  A  CORPORATION. 

Real  estate  is  usually  held  in  this  way. 

JOINT  ESTATES. 

ESTATES  WHICH  ARE  OWNED  BY  MORE  THAN  ONE  PER- 
SON ARE  KNOWN  AS  JOINT  ESTATES. 

The  term  "joint  tenant"  or  "joint  tenancy"  is,  however,  not 
applied  to  all  owners  of  joint  estates,  but  only  to  those  holding 
in  joint  tenancy ;  for  instance,  a  tenant  in  common  is  the  owner 
of  a  joint  estate,  but  is  not  a  joint  tenant. 


JOINT  ESTATES.  339 

JOINT  TENANCIES. 

A  JOINT  TENANCY  IS  AN  ESTATE  HELD  BY  TWO  OB  MORE 
PERSONS  (NOT  HUSBAND  AND  WIFE)  IN  A  UNITY  OF  POS- 
SESSION, TIME,  INTEREST  AND  TITLE.1 

At  the  common  law,  a  joint  tenancy  was  created  by  a  grant 
or  devise  to  two  or  more  persons  in  fee,  or  for  life,  for  years, 
or  at  will.  Xo  words  were  necessary  to  make  the  grantees 
joint  tenants;  for,  in  the  absence  of  an  expressed  intent  that 
the  tenants  should  hold  as  tenants  in  common,  they  took  a 
joint  estate.  In  many  of  the  States  this  common  law  rule  has 
been  reversed,  and  a  tenancy  in  common  arises,  unless  it  ex- 
pressly appears  that  the  grantor,  or  devisor,  intended  to  create 
a  joint  tenancy. - 

It  was  the  theory  of  the  common  law  that  the  joint  tenants 
held  the  land  as  a  unit,  and  not  as  a  number  of  individuals. 

In  order  that  a  number  of  persons  should  constitute  this 
unit,  it  was  necessary  that  the  same  estate  should  accrue  to 
all  by  the  same  instrument,  commence  at  the  same  time,  and 
be  held  by  one  and  the  same  undivided  possession. 

Or,  as  often  expressed,  there  must  be  a  unity  of  title,  time, 
interest  and  possession. 

1.     UNITY  OF  TITLE. 

The  title  of  the  joint  tenants  must  be  created  by  one  and 
same  act.  Thus,  if  one  tenant  derives  his  title  from  a  different 
grantor  than  the  other,  or  if  from  the  same  grantor,  but  at  a 

J"A  joint  tenancy  is  an  estate  held  by  two  or  more  persons  jointly, 
so  that  during  the  lives  of  all  they  are  equally  entitled  to  the  enjoy- 
ment of  the  land,  or  its  equivalent  in  rents  and  profits;  but  upon  the 
death  of  one  his  share  vests  in  the  survivor  or  survivors  until  there 
be  but  one  survivor,  when  the  estate  becomes  one  in  severalty  in 
him  and  descends  to  his  heirs  upon  his  death.'' 

Thornburg  vs.  Wiggins,  135  Ind..  ITS;  22  L.  R.  A..  42. 

2This  is  the  rule  in  following  States:  Arkansas.  California,  Dela- 
ware, Illinois.  Indiana.  Maine,  Massachusetts.  Maryland.  Michigan, 
Minnesota,  Missoiiri.  New  Hampshire.  New  York,  Rhode  Island.  Ver- 
mont and  Wisconsin. 


340  JOINT  ESTATES. 

different  time,  a  joint  tenancy  does  not  arise.3    The  estate  can 
only  be  created  by  grant  or  devise,  and  not  by  descent, 

2.  UNITY  OF  INTEREST. 

The  estate  of  the  tenants  must  be  the  same.  A  joint  ten- 
ancy will  not  arise  if  one  tenant  has  an  estate  for  years,  and 
the  other  has  an  estate  for  life.  So  there  can  be  no  joint  ten- 
ancy if  one  of  the  parties  in  interest  be  seised  of  an  estate  in 
possession,  and  the  other  of  an  estate  in  expectancy. 

3.  UNITY  OF  TIME. 

The  interest  of  the  parties  must  not  only  arise  at  the  same 
time,  but  must  vest  at  the  same  time. 

Where  by  the  same  instrument  land  is  devised  co  different 
persons,  and  one  half  vests  at  one  time  and  the  other  half  at 
another,  a  joint  tenancy  does  not  arise.  Thus,  where  land  is 
granted  to  A  for  life,  and  after  his  death  to  the  heirs  of  B  and 
C,  and  if  during  A's  life  B  dies,  the  remainder  of  the  half  would 
vest  in  B's  heirs  on  A's  death,  and  if  afterwards  C  dies,  the 
other  half  will  vest  in  his  heirs,  the  heirs  of  B  and  C  are  not 
joint  tenants,  but  tenants  in  common;  since  their  interests  did 
not  vest  at  the  same  time. 

4.  UNITY  OF  POSSESSION. 

Joint  tenants  have  possession  of  the  whole  and  of  each 
part,  or,  as  often  expressed,  they  are  seised  per  my  et  per  tout. 

The  interest  of  joint  tenants  is  one  and  the  same;  each 
does  not  own  a  distinct  portion,  but  each  has  an  interest  in  the 
whole,  and  this  interest  is  not  defeated  or  changed  by  the 
death  of  the  other  tenants. 

•2  Blk.,  180. 


JOINT  ESTATES.  341 

One  tenant  is  not  exclusively  seised  of  any  particular  por- 
tion, and  the  other  tenant  of  another  portion,  but  each  has 
an  undivided  moiety  of  the  whole  and  not  the  whole  of  an 
undivided  moiety.  Out  of  this  unity  of  possession  grow  all 
the  principles  relating  to  survivorship,  possession,  adverse  pos- 
session and  purchasing  of  an  outstanding  title  hereafter  dis- 
cussed. 

RIGHT  OF  SURVIVORSHIP. 

The  principal  incident  of  joint  tenancy  is  the  right  of  sur- 
vivorship or  jus  accrescendi.  This  right  is  a  consequence  of 
the  doctrine  of  unity  above  stated.  Each  of  the  tenants  hav- 
ing an  interest  in  the  whole,  on  the  death  of  one  of  the  ten- 
ants, this  interest  still  continues  until  the  last  survivor  ac- 
quires the  entire  property.6 

A  joint  tenant  cannot  devise  his  interest;  since  his  will 
could  take  effect  only  on  his  death,  at  which  time  his  estate 
would  have  passed  to  the  survivor. 

DESTRUCTION. 

A  joint  tenancy  may  be  destroyed, by  the  destruction  of  any 
one  of  the  unities  of  title,  interest  or  possession  of  one  of  the 
joint  tenants.  Thus  the  alienation  of  the  interest  to  a  third 
person  will  destroy  the  joint  tenancy;  since  the  parties  would 
not  hold  under  the  same  conveyance. 

"Blackstone  states  the  reason  of  the  rule  as  follows: 
"The  interest  which  the  survivor  originally  had  is  clearly  not 
divested  by  the  death  of  his  companion;  and  no  other  person  can  now 
claim  to  have  a  joint  estate  with  him,  for  no  one  can  now  have  an 
interest  in  the  whole,  accruing  by  the  same  title  and  taking  effect  at 
the  same  time  with  his  own;  neither  can  any  one  claim  a  separate 
interest  in  any  part  of  the  tenements;  for  that  would  be  to  deprive  the 
survivor  of  the  right  which  he  has  in  all  and  every  part;  as,  therefore, 
the  survivor's  original  interest  in  the  whole  still  remains;  and  as  no 
one  can  be  admitted,  either  jointly  or  severally,  to  any  share  with  him 
therein,  it  follows  that  his  own  interest  must  now  be  entire  and  several, 
and  that  he  shall  alone  be  entitled  to  the  whole  estate  created  by  the 
original  grant. 

2  Blk.  Com.,  184.  i 


342  JOINT  ESTATES. 

The  effect  of  such,  a  conveyance  is  to  create  an  estate  in 
common  in  tie  grantee;  but  the  remaining  joint  tenants  would 
still  hold  their  portions  in  joint  tenancy. 

A  joint  tenancy  may  also  be  severed  by  a  partition  between 
the  joint  tenants.  The  right  of  one  joint  tenant  to  compel  a 
partition  did  not  exist  at  the  common  law. 

At  an  early  date  statutes  were  passed  permitting  a  par- 
tition. These  statutes  have  been  generally  followed  by  the 
legislatures  in  this  country. 

The  tenancy  may  also  be  defeated  by  one  tenant  releasing 
his  interest  to  another  of  the  joint  tenants. 

STATUTES. 

The  estate  was  originally  favored  by  the  laAv  courts,  since 
it  prevented  the  division  of  tenures,  but  the  estate  has  never 
been  favored  in  this  country.  In  many  of  the  States  the  right 
of  survivorship  has  been  abolished  by  statute.8 

In  other  States,  as  has  been  stated,  grants  made  to  two  or 
more  persons,  create  an  estate  in  common,  and  not  in  joint 
tenancy,  unless  expressly  declared  to  be  in  joint  tenancy,  and 
this  is  true,  even  though  the  four  unities  exist. 

This  presumption  in  favor  of  an  estate  in  common,  as  a 
general  rule,  does  not  apply  to  grants  or  devises  in  1  rust,  or  to 
executors  or,  in  many  States,  as  we  shall  afterwards  see,  to 
grants  to  a  husband  and  wife.  The  estate  is  not  now  often 
created  and  is  mostly  used  in  cases  of  grants  and  devises  to 
trustees  and  executors. 

ESTATES  BY  ENTIRETIES. 

AN  ESTATE  BY  THE  ENTIRETY  IS  AN  ESTATE  POSSESS- 
ING THE  UNITIES  NECESSARY  TO  CONSTITUTE  A  JOINT 
TENANCY,  AND  IS  HELD  BY  A  HUSBAND  AND  A  WIFE  AS  A 
LEGAL  UNIT. 

•See  Alabama,  Connecticut,  Florida,  Georgia,  Kansas.  Kentucky. 
Mississippi.  North  Carolina.  Tennessee,  Texas,  Utah  and  Virginia. 


JOINT  ESTATES.  S43 

This  estate  is  of  considerable  importance.  It  is  a  peculiar 
estate.  It  grows  out  of  a  legal  fiction  which  has  been  dis- 
carded, yet  the  logical  deductions  from  that  fiction  have  the 
effect  of  law  in  many  States  at  the  present  time.  It  has  been 
stated  that  at  the  common  law,  the  husband  and  the  wife 
were  regarded  as  a  legal  unit  or  person.  This  being  so,  it 
follows  that  when  a  conveyance  was  made  to  a  husband  and 
wife,  they  became  seised,  not  as  tenants  in  common,  or  as  joint 
tenants,  but  as  one  person;  that  is,  each  became  seised  of  the 
entire  estate,  or,  as  often  expressed  by  the  entireties.  ''The 
parties  do  not  hold  moieties,  but  take  as  one  person,  taking  as 
a  corporation  would  take;  they  have  but  one  title;  each  is 
seised  of  the  whole,  and  each  owns  the  whole.9 

As  often  expressed,  tenants  by  the  entireties  are  seised  per 
tout  and  not  per  my  et  per  tout,  as  in  the  case  of  a  joint 
tenancy. 

A  further  illustration  that  the  husband  and  wife  take  as 
one  person,  is  found  in  the  case  of  a  grant  to  a  husband  and 
wife  and  a  third  person.  In  such  a  case,  the  parties  tio  not 
take  a  third  each,  but  the  husband  and  wife  take  a  moiety  and 
the  third  person  takes  the  other  moiety.  Out  of  this  peculiar 
seisin  grew  as  a  necessity  the  doctrine  of  survivorship  and 
the  inseverability  of  the  estate. 

In  discussing  the  nature  and  incidents  of  this  estate,  we 
will  briefly  consider  the  methods  by  which  it  may  be  created, 
in  what  estates,  the  rights  of  the  parties,  the  methods  by 
which  the  estate  may  be  determined,  and  some  of  the  statutory 
amendments  of  the  common  law  estate. 

HOW  CREATED. 

At  the  common  law  a  tenancy  by  the  entirety  was  created 
by  the  conveyance  of  an  estate  to  persons  who  were  in  fact 

•Corinth  vs.  Emery,  63  Vt,  505. 


344  JOINT  ESTATES. 

husband  and  wife.  It  is  not  necessary  at  the  common  law  to 
express  an  intent  that  the  grantees  shall  take  by  the  entireties. 
It  is  presumed  that  the  grantor  or  devisor  intended  that 
the  husband  and  wife  should  take  by  entireties,  unless  it  ex- 
pressly appears  that  he  intended  to  create  some  other  ten- 
ancy.10 This  common  law  rule  is  in  force  in  many  States,  if  not 
most  of  the  States  in  which  the  estate  may  be  created.11 

In  some  States  there  are  statutory  provisions  that  the  estate 
shall  not  arise,  unless  the  grant  expressly  provides  that  the 
grantees  shall  take  by  entireties;  and  that,  in  the  absence  of 
such  a  provision,  the  husband  and  wife  shall  take  as  ten 
ants  in  common.12 

It  is  not  necessary  that  the  grantees  be  described  as  hus- 
band and  wife.  Parol  evidence  of  their  relationship  may  be 
given.13  But  the  grantees  must  be  in  fact  husband  and  wife. 

If  the  conveyance  is  made  to  them  before  marriage,  or  after 
a  void  marriage,  they  will  not  take  by  the  entireties.1* 

Thus,  where  a  conveyance  was  made  to  parties  who  be- 
lieved themselves  to  be  husband  and  wife,  and  by  a  grantor 
who  had  the  same  belief,  and  with  a  provision  in  the  grant 
that  they  should  take  by  the  entireties,  and  the  marriage  of 
the  grantees  was  void  by  reason  of  the  fact  that  the  wife  had 
a  former  husband  living,  it  was  held  that  the  estate  by  the 
entireties  did  not  arise.15 

"Knapp  vs.  Windsor,  6  Cush.,  157. 

"Baker  vs.  Stewart,  40  Kans.,  442  (2  L.  R.  A.,  434).    An  estate  in 
the  entirety  is  created  by  a  deed  to  a  husband  and  wife  and  their  heirs. 
McLeod  vs:  Tarrant.  39  S.  C.,   271;  20  L.  R.  A.,  846. 
Bowling  vs.   Salliotte.  83  Mich..   131. 
"Wyckoff  vs.  Gardner.  20  N.  J.  L..  556. 
Shaw  vs.  Hearsey,  5  Mass.,  521. 
Hemingway  vs.  Scales,  42  Miss.,  17. 
Hall  vs.  Stephens,  65  Mo.,  676. 
"Dowling  vs.  Salliotte.  83  Mich.,  131. 
Hulett  vs.  Inlow,  57  Ind.,  412. 
"Holt  vs.  Wilson,  75  Ala.,  65-  . 

•       "Morris  vs.  McCarty,  158  Mass..  11. 


JOINT  ESTATES.  345 

Iii  Michigan,  under  similar  circumstances,  where  the  par- 
ties were  described  as  husband  and  wife,  and  the  survivor 
conveyed  the  property  to  a  third  person,  without  notice  that 
the  marriage  was  void,  it  was  held  that  the  grantee  took  a 
good  title,  on  the  ground  that  the  record  could  not  be  shown 
to  be  untrue.16  If  the  marriage  is  voidable  only  and  is  not  dis- 
solved, the  grantees  take  by  entireties. 

In  order  that  the  estate  may  arise,  it  must  be  created  by 
the  same  deed.17  There  must  be  the  unity  of  time. 

If  the  husband  and  wife  acquire  their  interest  by  separate 
instruments,  or  if  the  husband  conveys  a  half  interest  in  his 
property  to  his  wife  the  estate  will  not  arise.18 

If  the  husband  desires  to  hold  his  property  in  entireties 
with  his  wife,  he  must  convey  it  to  a  third  person,  and  on 
such  third  person  conveying  it  back  to  the  husband  and  wife, 
they  will  take  by  the  entireties. 

The  estate  will  arise  only  out  of  the  acts  of  the  parties,  as 
by  grant  or  devise.  It  will  not  arise  from  descent;  for  in  such 
case  the  intent  to  create  an  estate  by  entireties  cannot  be 
presumed.19 

It  is  possible  at  the  common  law  to  create  an  estate  in  com- 
mon in  the  husband  and  wife,  but  to  have  this  effect  the  grant 
must  expressly  provide  that  they  shall  take  in  common.20 


''"Jacobs  vs.  Miller,  50  Mich.,  119. 

17Brown  vs.  Baraboo,  90  Wis.,  151;  30  L.  R.  A.,  320. 

18Tindell  vs.  Tindell  (Tenn.),  37  S.  W..  1105. 

'"Brown  vs.  Baraboo,  90  Wis.,  151;  30  L.  R.  A.,  320. 

20  A  deed  to  a  husband  and  wife  "as  tenants  in  common"  creates  a 
tenancy  in  common  and  not  by  the  entirities. 

Fulper  vs.  Fulper,  54  N.  J.  Bq.,  431;  32  L.  R.  A.,  701. 

So  it  was  held  that  a  husband  and  wife  do  not  take  as  tenants  b.v 
tntirities,  but  as  joint  tenants  under  a  conveyance  to  them  in  joint 
tenancy. 

Thornburg  vs.  Wiggins,  135  Ind.,  178;  22  L.  R.  A.,  42. 


346  JOINT  ESTATES. 

IN  WHAT  ESTATES. 

An  estate  by  the  entirety  may  be  created  in  any  estate 
taken  by  purchase.  It  may  be  created  in  an  estate  in  fee 
simple,  for  life  or  for  years,  or  in  a  conditional  or  limited  fee. 

RIGHTS  OF  PARTIES— RIGHT  OF  SURVIVORSHIP. 

Each  of  the  parties  being  seised  of  the  whole,  it  follows 
that  if  one  dies  the  estate  continues  in  the  survivor. 

This  right  of  survivorship  exists  by  virtue  of  the  grant 
which  vests  the  entire  estate  in  the  legal  unit,  and  is  not  a 
species  of  inheritance.  The  right  of  survivorship  is  the  same 
as  in  the  case  of  a  joint  tenancy. 

THE  CHIEF  INCIDENT  OF  AN  ESTATE  BY  THE  ENTIRETY 
IS  ITS  INSEVERABILITY. 

The  property  being  vested  in  the  legal  unit  and  not  in  the 
individuals  composing  that  unit,  it  follows  that  neither  the 
husband  nor  the  wife  can  convey  any  portion  of  it  by  his  or 
her  sole  and  separate  act.  As  neither  tenant  can  convey  the 
property  so  as  to  bind  the  other,  it  follows  that  the  tenancy 
cannot  be  severed  by  deed.21 

There  is  some  difference  of  opinion  as  to  the  exact  right 
of  joint  tenants  by  the  entireties,  but  the  courts  have  all  agreed 
on  the  proposition  that 

NEITHER  THE  HUSBAND  NOR  THE  WIFE  CAN,  BY  HIS 
OR  HER  SOLE  ACT,  AFFECT  THE  OTHER'S  RIGHT  OF  SUR- 
VIVORSHIP, AND  THE  SURVIVING  SPOUSE  ACQUIRES  THE 
ENTIRE  ESTATE  FREE  FROM  ALL  CHARGES  CREATED  BY 
THE  DECEASED  SPOUSE. 

-'Corinth  vs.  Emery,  63  Vt.,  505.  "The  grand  characteristic  which 
distinguishes  a  tenancy  by  the  entireties  from  a  joint  tenancy  is  its  in- 
severahility,  whereby  neither  the  husband  nor  the  wife,  without  the 
assent  of  the  other,  can  dispose  of  any  part  of  the  estate  so  as  to  affecr 
the  right  of  the  survivorship  of  the  other." 

Hiles  vs.  Fisher,  144  N.  Y.,  300;  30  L.  R.  A.,  305. 


JOINT  ESTATES.  347 

Thus,  on  the  death  of  the  husband,  the  wife  takes  the  prop- 
erty free  from  the  claims  of  any  grantee  of  the  husband,  or 
from  any  of  his  creditors,  or  from  any  charge  upon  it,  how- 
ever created,  to  which  she  did  not  assent.23 

Neither  can  one  of  the  tenants  at  the  common  law  compel 
a  partition  of  property  held  by  the  entireties.24 

RIGHTS  DURING  COVERTURE. 

The  courts  do  not  agree  in  all  respects  as  to  the  rights  of 
tenants  by  entireties  during  their  joint  lives. 

The  common  law  during  the  continuance  of  the  coverture 
ignored  the  peculiar  seisin  and  equality  of  the  husband  and 
wife,  and  the  husband  was  held  to  be  entitled  to  the  full  con- 
trol and  to  take  the  rents  and  profits,  to  the  exclusion  of  the 
wife.25  This  usufructuary  right  the  husband  might  sell,  mort- 
gage and  lease  at  common  law,  and  his  act  in  so  doing  would 
be  given  effect  during  coverture.  This  interest  of  the  husband, 
it  has  been  held,  is  subject  to  be  taken  and  sold  on  an  execu- 
tion.26 But  no  act  of  the  husband,  as  has  been  stated,  could 
affect  his  wife's  rights  of  survivorship. 

The  usufructuary  right  of  the  husband  during  the  cover- 
ture, it  is  believed,  was  not  an  incident  of  an  estate  by  the 
entirety,  but  was  a  part  of  his  common  law  marital  right.  He 
took  the  rents  and  profits  of  land  held  in  the  entirety  upon 
the  same  right  that  he  took  the  rents  and  profits  of  other  land 
owned  by  the  wife  solely.  This  being  so,  an  interesting  ques 
tion  has  arisen  as  to  the  effect  of  the  married  woman's  acts  on 

!8A  purchaser  upon  an  execution  sale  of  the  husband's  interest  has 
no  claim  which  can  be  asserted  against  the  wife  after  his  death. 

Simpson  vs.  Pearson,  31  Ind.,  1. 
:4Miller  vs.  Miller,  9  Abb.,  Pr.  N.  S.,  444. 
"Hiles  vs  Fisher,  144  N.  lr.,  306;  30  L.  R.  A.,  305. 
26Hiles  vs.  Fisher.  144  N.  Y.,  306:  30  L.  R.  A.,  305. 
vs.  Stebbins.  141  Mass..  219. 


348  JOINT  ESTATES.    ' 

the  husband's  common  law  rights  in  estates  by  entireties  dur- 
ing coverture. 

Married  woman's  acts,  since  they  give  the  wife  control  of 
her  own  property,  impliedly  abolish  the  husband's  common 
law  marital  rights  to  the  rents  and  profits  of  his  wife's  land. 
The  courts  differ  as  to  the  effect  of  these  acts  upon  estates 
by  the  entireties.  i 

In  some  States  it  is  held  that  the  rents  and  profits  during 
coverture  no  longer  belong  to  the  husband  solely,  but  to  the 
husband  and  wife  jointly,  and  that  they  can  only  be  disposed 
of  and  charged  by  the  joint  act  of  husband  and  wife.27 

In  other  States  it  has  been  held  that  so  far  as  the  rents 
and  profits  during  coverture  are  concerned,  the  husband  and 
wife  have  now  equal  rights,  and  that  either  one  may  dispose 
of  or  charge  his  or  her  moiety  during  coverture.28  This  ruling 
does  not  in  any  way  affect  the  right  of  survivorship.  In  other 
States  the  husband  seems  to  have  the  same  usufructuary  rights 
during  coverture  as  at  common  law.29 

HOW  DETERMINED. 

The  husband  and  wife,  by  their  joint  act,  may  terminate 
the  estate  or  make  a  valid  charge  upon  ft.  Thus,  they  may 
convey  or  mortgage  by  instruments  in  which  they  both  join. 

While  it  is  well  settled  that  neither  spouse  can  affect  the 
other's  right  of  survivorship,  the  question  has  arisen  as  to  the 
right  of  one  spouse  to  convey  the  property  in  such  a  way  that 
in  case  of  the  grantor's  survival  his  right  of  survivorship  shall 

27McCurdy  vs.  Canning,  64  Pa.,  39. 

Chandler  vs.  Cheney,  37  Ind.,  391. 

See  Naylor  vs.  Minock,  96  Mich.,  182. 
2SHiles  vs.  Fisher,  144  N.  Y.,  306;  30  L.  R.  A..  305. 
Buttlar  vs.  Rosenblath,  42  'N.  J.  Eq.,  651. 

29Bolles  vs.  State  Trust  Co.,  27  N.  J.  Eq.,  308. 
Pray  vs.  Stebbins,  141  Mass.,  219. 


JOINT  ESTATES.  349 

belong  to  his  grantee.  On  this  question  the  courts  are  not 
agreed. 

In  some  States  it  is  held  that  a  conveyance  by  one  spouse 
during  the  coverture  will  be  given  effect  if  such  spouse  sur- 
vives. That  is,  one  spouse  may  convey  the  property  subject 
to  the  rights  of  the  other  during  coverture,  and  subject  to 
right  of  survivorship.  Thus  it  has  been  held  that  a  convey- 
ance by  the  husband  of  property  held  in  the  entirety  passes 
the  right  to  possession  of  an  undivided  half,  during  the  joint 
lives  of  the  husband  and  wife,  and  to  the  fee,  in  case  the 
husband  survived  his  wife.30 

And  it  has  been  held  that  the  purchaser  at  an  execution  or 
mortgage  sale  of  the  interest  of  one  spouse,  would  be  entitled 
to  the  estate  if  such  spouse  survives  the  other.31 

Whether  or  not  the  conveyance  of  the  husband  wou'ld  be 
given  effect  during  their  joint  life  time,  will  depend  on  which 
of  the  rules  already  discussed  under  rights  of  parties  during 
coverture,  the  courts  adopt  or  are  bound  by. 

In  other  States  an  interest  in  the  property  cannot  be  con- 
veyed, except  by  the  joint  act  of  the  husband  and  wife.  In 
these  States  the  grant  of  one  spouse  is  void  and  will  not  be 
effectual,  even  if  such  spouse  survives.  And  in  these  States 
the  sale  of  the  husband's  interest  on  an  execution  will  not 
convey  any  interest  to  the  purchaser.33 

So,  in  Michigan  it  was  held  that  the  mortgage  of  the  wife 
was  void  and  could  not  be  enforced  against  the  wife,  even  after 
the  death  of  the  husband.34 

"°Hiles  vs.  Fisher,  144  N.  Y.,  306;  30  L.  R.  A.,  305. 
"Hiles  vs.  Fteher  (ibid). 

McCurdy  vs.  Canning,  04  Pa.,  41. 
"Vinton  vs.  Bearner.  55  Mich.,  559. 

Chandler  vs.  Cheney,  37  Ind.,  391. 

"Naylor  vs.  Minock.  9(5  Mich.,  182. 


350  JOINT  ESTATES. 

DIVORCE. 

In  many  of  the  States  the  effect  of  a  divorce  is  to  change 
the  estate  into  a  joint  tenancy,  or  into  a  tenancy  in  common.35 

"One  legal  person  has  been  resolved  by  judgment  of  law 
into  two  distinct,  individual  persons,  having  in  future  no  rela- 
tions to  each  other;  and  with  this  change  in  their  relations 
must  necessarily  follow  a  corresponding  change  of  tenancy, 
dependent  upon  the  previous  relation,  as  they  no  longer  hold 
in  joint  seisin,  they  must  hold  by  moieties." 

In  Michigan  it  has  been  held  that  a  divorce  does  not  affect 
the  estate.36 

STATUTES. 

In  many  of  the  States  the  common  law  estate  exists,  with 
most  of  the  common  law  incidents.37  In  other  States  the  estate 
does  not  exist. 

In  some  States  the  husband  and  wife  now  take  as  tenants 
in  common,  and  in  Connecticut  they  take  as  joint  tenants. 

In  some  States  it  has  been  held  that  the  married  woman's 
acts,  since  they  destroy  the  common  law  fiction  of  unity,  de- 
stroy estates  by  the  entirety,  and  that  the  husband  and  wife 
now  being  separate  individuals,  take  as  tenants  in  common.38 

The  weight  of  authority  is  that  the  married  woman's  acts 
do  not  affect  estates  by  the  entireties.39 

35Stelz  vs.  Shreck,  128  N.  Y.,  263;  13  L.  R.  A.,  325. 
Harrer  vs.  Wallner,  80  111.,  197. 
Barber  vs.  Root.  10  Mass.,  260. 
Lash  vs.  Lash,  58  Ind.,  526. 
""Lewis'  Appeal,  85  'Mich.,  340. 

"This  is  the  case  in  Arkansas,  Indiana,  Kansas,  Maine,  Maryland, 
Michigan.  Missouri.  New  Jersey,  New  York,  North  Carolina.  Pennsyl- 
vania, Tennessee.  Vermont  and  Wisconsin. 

"•Robinson's  Appeal,  88  Me.,  17;  30  L.  R.  A.,  331. 
""Fisher  vs.  Provin,  25  Mich.,  347. 
Baker  vs.  Stewart.  40  Kans..  442:  2  L.  R.  A..  434. 
Braniberry  Estate.  156  Pa.  St.,  628;  22  L.  R.  A.,  594. 


JOINT  ESTATES.  351 

ESTATES  IN  COPARCENARY. 

AN  ESTATE  IN  COPABCENABY  IS  WHEBE  LAND  OF  IN- 
HEBITANCE  DESCENDS  .JBOM  THE  ANCESTOB  TO  TWO  OB 
MOBE  PEBSONS.'0 

The  tenants  in  this  estate  were  called  coparceners  or  simply 
parceners,  because  they  could  be  compelled  to  make  partition. 
Each  of  the  parceners  was  entitled  to  the  whole  of  a  distinct 
moiety,  and  there  was  no  right  of  survivorship.  The  estate 
has  never  existed  in  this  country,  except  in  Maryland. 

Co-heirs  in  the  United  States  take  as  tenants  in  common. 

PARTNERSHIP  ESTATES. 

AN  ESTATE  IN  PABTNEBSHIP  IS  ONE  WHICH  IS  PUB- 
CHASED  BY  PABTNEBSHIP  FUNDS  AND  HELD  BY  PABTNEBS 
FOB  PABTNEBSHIP  PUBPOSES. 

If  property  is  conveyed  to  a  number  of  co-partners,  the 
same  estate  is  created  at  law  as  in  the  conveyance  to  other 
persons,  and  ordinarily  at  law  the  partners  held  as  tenant? 
in  common.  But  if  the  property  is  purchased  by  partnership 
assets,  and  for  partnership  purposes,  it  comes  under  the  opera- 
tion of  the  general  principles  relating  to  partnership  property. 
That  is,  the  general  principles  relating  to  partnership  rights 
and  obligations,  are  applicable,  not  only  to  the  personal  prop- 
erty, but  also  to  the  real  property  of  the  partnership.41 

In  order  that  real  property  may  come  within  the  general 
principles  relating  to  partnership  property,  it  is  not  sufficient 
that  it  is  owned  by  the  individual  members  of  the  partnership ; 
nor  is  it  sufficient  that  it  is  used  in  the  partnership  business. 
Both  of  these  characteristics  may  exist,  and  the  property  may 
not  be  partnership  property. 

W2  Blk..  187. 

"Trowbridge  vs.  Cross,  117  111.,  109. 


352  JOINT  ESTATES. 

In  addition,  it  must  appear  that  the  partners  intended  that 
the  property  should  be  held  as  partnership  property.42 

The  intention  of  the  partners  may  be  gathered  from  the 
articles  of  partnership,  the  fund  with  which  it  was  purchased, 
the  uses  to  which  it  has  been  put  and  the  manner  in  which 
il  has  been  entered  in  the  books  of  the  firm. 

There  is  no  difficulty  in  determining  the  nature  of  the  real 
property  when  the  intention  of  the  parties  is  expressed  in  the 
articles  of  partnership,  or  in  the  deed  conveying  the  property. 

In  the  absence  of  an  express  agreement  or  circumstances 
indicating  an  intent  that  the  property  shall  be  held  by  the  par- 
tners as  individuals,  the  property  will  be  held  to  be  partnership 
property,  if  it  is  purchased  with  partnership  funds. 

WHEBE  REAL  PROPERTY  IS  BOUGHT  WITH  PARTNER- 
SHIP FUNDS,  FOR  PARTNERSHIP  PURPOSES,  AND  IS  AP- 
PLIED TO  PARTNERSHIP  USES  OR  CARRIED  IN  THE  AC- 
COUNTS OF  THE  FIRM  AS  A  PARTNERSHIP  ASSET,  IT  IS 
DEEMED  TO  BE  PARTNERSHIP  PROPERTY.43 

Once  the  character  of  the  property  as  partnership  property 
is  determined,  the  rights  of  the  partners  and  their  creditors  is 
well  settled.  ' 

At  law  they  are  tenants  in  common,  or  joint  tenants,  de- 
pending on  the  nature  of  the  conveyance  under  which  they 
acquire  title. 

IN  EQUITY,  THE  PARTNERSHIP  REAL  ESTATE  IS  CONSID- 
ERED AS  PERSONAL  PROPERTY,  FOR  ALL  PURPOSES  AS  TO 
THE  PARTNERS,  INTER  SE,  AND  AS  TO  THE  CREDITORS  OF 
THE  PARTNERSHIP,  AND  IN  SOME  INSTANCES,  FOR  THE 
PURPOSE  OF  DISTRIBUTION  ON  THE  DEATH  OF  ONE  OF  THE 
PARTNERS.44 

"Pepper  vs.  Pepper,  24  111.  App.,  316. 

Goldthwaite  vs.  Janney.  302  Ala.,  431;  28  L.  R.  A.,  101. 
"Robinson  Bank  vs.  Miller,  153  111..  244;  27  L.  R.  A.,  449. 
"Galbraith  vs.  Tracy,  IK  111.,  54;  28  L.  R.  A.,  129. 


JOINT  KSTATKS.  353 

Thus,  as  has  been  stated,  the  property  may  be  conveyed  for 
partnership  purposes,  free  from  any  claim  of  dower. 

So  the  partnership  real  estate  is  primarily  liable  for  the 
partnership  debts,  and,  in  case  of  insolvency,  the  proceeds  of 
partnership  real  estate  will  be  applied,  first  to  the  satisfaction 
of  partnership  creditors,  and  afterwards  to,  payments  of  the 
creditors  of  the  several  partners.46 

On  the  dissolution  of  the  partnership,  the  equitable  title 
to  partnership  realty  vests  in  the  surviving  partners  for  the 
purpose  of  the  settlement  of  the  affairs  of  the  partnership;47 
and  for  such  purpose  they  are  entitled  to  its  possession  and 
exclusive  control.48 

The  surviving  partners  may  sell  and  dispose  of  the  part- 
nership realty  for  the  purpose  of  settling  partnership  indebted- 
ness, either  to  third  persons  or  to  any  of  the  partners. 

Whatever  surplus  of  money  or  residuum  of  land  remaining 
after  partnership  debts  have  been  discharged,  resumes  the 
character  of  real  estate  and  goes  to  the  heirs  and  not  to  the 
personal  representative  of  a  deceased  partner.49 

The  partners  may  agree  that  the  partnership  realty  shall 
be  treated  as  personalty  for  all  purposes,  in  which  event  it  is 
absolutely  converted  into  personalty;  and  passes  as  personal 
estate  to  the  representative  of  the  deceased  partner.50  In  Eng- 
land, partnership  realty  is  regarded  as  personal  property  for 
all  purposes. 

"Ross  vs.  Henderson,  77  N.  Car..  170. 
"Clay  vs.  Field.  34  Red.  Rep.,  375. 
Heath  vs.  Waters,  40  Mich.,  457. 

Russell  vs.  McCall,  141  X.  Y.,  437. 
4SOffutt  vs.  Scott,  47  Ala.,  104. 

Stemberg  vs.  Larkin,  58  Kans,.,  201;  37  L.  R.  A.,  10."). 
<9Galbraith  vs.  Tracy,  153  111.,  54;  28  L.  R.  A.,  lii'i. 
"Hug-hes  vs.  Allen,  66  Vt,  95. 
Ware  vs.  Owens,  42  Ala.,  212. 


354  JOINT  ESTATES. 

If  the  property  is  purchased  by  partnership  funds,  for  part- 
nership purposes,  and  the  legal  title  is  taken  in  the  name  of 
one  partner,  it  will  be  treated  in  equity  as  partnership  prop- 
erty, and  the  partner  in  whom  the  title  is.  will  hold  it  in  trust 
for  the  partnership.51 

This  ruling  does  not  violate  the  statute  of  frauds. 

If,  the  property  is  purchased  by  a  third  person,  without 
notice  of  the  trust  in  favor  of  the  partnership,  he  will  take  a 
good  title.52  ' 

ESTATES  IN  COMMON. 

A  TENANCY  IN  COMMON  IS  AN  ESTATE  HELD  BY  SEV- 
ERAL TENANTS,  NOT  JOINTLY  BUT  BY  SEPARATE  AND  DIS- 
TINCT TITLES. 

An  estate  in  common  arose53  at  the  common  law,  when  the 
grant  or  devise  indicated  that  the  grantees  or  devisees  should 
take  separate  and  independent  shares. 

It  also  arose  in  those  cases  where  two  or  more  persons  held 
title  to  the  property,  but  in  which  the  four  unities  were  not 
present.  The  only  unity  required  in  case  of  a  tenancy  in  com- 
mon, is  the  unity  of  possession.  Thus,  if  the  tenants  hold  by 
several  titles  arising  at  different  times,  the  tenancy  is  in 
common. 

In  the  United  States  the  general  rule  is  that  even  in  those 
instances  in  which  the  four  unities  are  present,  the  grantees 
or  devisees  will  take  as  tenants  in  common,  unless  a  contrary 
intention  appears  from  the  terms  of  the  grant. 

When  a  conveyance  is  silent  as  to  the  interest  which  each 
takes,  the  presumption  is  that  their  interests  are  equal.54 

"Robertson  vs.  Baker,  11  Fla..  192. 
"Priest  vs.  Chouteau,  85  Mo.,  398. 
"Godfrey  vs.  White,  43  Mich.,  171. 
"Campau  vs.  Campau,  44  Mich..  31. 
Markoe  vs.  Wakeman,  107  111..  251. 


JOINT  ESTATES.  355 

If  the  conveyance  is  to  several  persons,  but  not  in  undivided 
portions,  and  in  such  a  way  that  each  grantee  takes  a  particular 
portion  which  can  be  identified,  the  grantees  take  in  severalty, 
and  not  in  common.55  Tenants  in  common  are  not  entitled  to 
the  right  of  survivorship.  On  the  death  of  a  tenant  in  com- 
mon, his  interest  passes  to  his  heirs  or  devisees. 

The  unity  of  possession  being  the  same  as  in  the  case  of 
a  joint  tenancy,  the  principles  applicable  to  .possession,  adverse 
possession  and  purchasing  of  an  outstanding  title,  hereafter 
discussed,  are  applicable  to  tenancies  in  common. 

INCIDENTS  OF  ALL  JOINT  ESTATES. 

The  one  element  common  to  all  joint  estates  is  the  unity 
of  possession,  and  the  principles  growing  out  of  this  unity  are 
applicable  to  all  joint1  tenants. 

THE  POSSESSION  OF  ONE  JOINT  TENANT  IS  THE  POSSES- 
SION OF  HIS  CO-TENANTS. 

A  joint  tenant,  not  in  possession,  has  a  right  to  assume  that 
the  possession  of  a  co-tenant  is  his  possession.  And  in  the 
absence  of  an  actual  ouster  or  a  notice  by  act  or  declaration, 
the  possession  of  one  tenant  will  not  be  considered  as  adverse 
to  his  co-tenants.57 

But  if  one  joint  tenant  actually  ousts  the  others,  his  pos- 
session may  become  adverse.  If  there  is  not  an  actual  ouster, 
but  the  tenant  in  possession  gives  actual  notice,  or  commits 
notorious  acts  of  adverse  possession,  his  possession  may  become 
adverse.58 

"Fleming  vs.  Kerr,  10  Watts  (Pa.),  444. 
"Aguirre  vs.  Alexander,  58  Gal.,  21. 
""Morris  vs.  Davis,  75  Ga.,  169. 
Dryden  vs.  Newman,  116  111.,  186. 
Coogler  vs.  Rogers,  25  Fla.,  853. 


356  JOINT  KSTATKS. 

A  JOINT  TENANT  CANNOT  PURCHASE  AN  OUTSTANDING 
TITLE  AND  SET  IT  UP  AGAINST  HIS  CO-TENANTS. 

A  joint  tenant  is  under  an  obligation  to  do  nothing  which 
will  prejudice  the  rights  of  his  co-tenants.  The  payment  of 
taxes  by  one  joint  tenant  will  operate  for  the  benefit  of  all.59 
If  one  tenant  purchases  an  outstanding  title,  the  other  ten- 
ants will  be  entitled  to  the  benefit  of  snch  purchase,  on  con- 
tributing their  proper  proportion  of  the  expense.60 

JOINT  TENANTS,  EXCEPT  TENANTS  BY  THE  ENTIRITIES, 
HAVE  A  BIGHT  TO  ALIENATE  THEIR  RESPECTIVE  INTER- 
ESTS BY  A  SOLE  CONVEYANCE. 

THE  INTEREST  OF  ALL  JOINT  TENANTS,  EXCEPT  TEN- 
ANTS BY  THE  ENTIRETIES,  IS  SUBJECT  TO  BE  TAKEN  ON  AN 
EXECUTION." 

JOINT  TENANTS,  EXCEPT  TENANTS  BY  THE  ENTIRETIES, 
MAY  COMPEL  PARTITION. 

Joint  tenants  at  the  common  law  might  agree  to  a  partition 
of  the  property,  and,  if  such  an  agreement  were  carried  out  by 
conveyances  or  releases,  the  tenants  took  their  respective  por- 
tions in  severalty.  Such  a  partition  is  known  as  a  voluntary 
partition. 

At  the  common  law  a  parol  partition,  i.  e.,  a  division  of  the 
land  itself,  would  be  given  effect  in  the  case  of  tenants  in  com- 
mon and  co-parceners.  This  is  still  the  rule  in  many  States, 
providing  such  partition  is  followed  by  the  exclusive  posses- 
sion by  each  tenant  of  the  portion  allotted  to  him.  62  It  is 
contended,  in  the  States  adopting  this  rule,  that  it  does  not 
violate  the  statute  of  frauds. 

59Mc€onnel  vs.  Konepel,  4G  111.,  519. 
"Titsworth  vs.  Stout,  49  III.,  78. 

Barnes  vs.  Boardman,  152  Mass.,  391;  9  L.  R.  A.,  571. 
Williams  vs.  Morris,  95  U.  S.,  455. 

"Thornburg  vs.  Wiggins,  135  Ind.,  178;  22  L.  R.  A.,  42. 
KTaylor  vs.  Millard,  118  N.  Y.,  244;  6  L.  R.  A,.  CC7. 


JOINT  ESTATKS.  357 

The  theory  of  the  courts  is.  that  in  a  tenancy  in  common, 
the  seisin  being  per  my  and  not  per  tout,  each  tenant  owns  an 
undivided  fraction,  and  that  the  effect  of  the  partition  is  not 
to  convey  a  title  to  such  fraction,  but  simply  to  ascertain  and 
define  the  limits  of  the  respective  possessions.63 

This  rule  is  not  applicable  to  joint  tenants:  since  they  are 
seised  of  the  whole,  and,  in  order  to  effect  a  partition,  it  is 
necessary  to  have  a  conveyance  in  accordance  with  the  re- 
quirements of  the  statute  of  frauds. 

The  rule  that  the  statute  of  frauds  does  not  apply  to  ex- 
ecuted parol  partitions,  has  been  adopted  in  many  States."4 

In  other  States  it  is  held  that  such  a  partition  can  be  ac- 
complished only  by  proper  conveyances.65 

In  these  States  a  parol  partition,  followed  by  possession, 
passes  the  equitable  title  to  the  allotted  portion;  and  if  the 
possession  continues  for  a  period  sufficient  to  give  title  under 
the  statute  of  limitations,  it  will  ripen  into  a  legal  title.00 

At  the  common  law,  if  all  the  co-tenants  did  not  consent 
to  a  partition,  none  could  be  forced.  In  the  reign  of  Henry 
VIII.  a  statute  was  passed  permitting  joint  tenants  and  ten- 
ants in  common  in  fee,  for  life,  or  for  years,  by  a  judicial  pro- 
ceeding, to  compel  partition. 

Statutes  have  been  passed  in  all  the  States,  providing  the 
method  by  which  tenants  in  common  and  joint  tenants  may 
compel  partition. 

In  those  cases  in  which  the  property,  by  reason  of  its  small- 
ness  or  situation,  is  incapable  of  division  to  advantage,  the 
statutes  usually  provide  that  it  may  be  sold  and  the  proceeds 
divided  among  the  owners. 

"Taylor  vs.  Millard,  ibid. 

«4Byers  vs.  Byers,  183  Pa.  St..  500. 
"'Porter  vs.  Perkins,  5  Mass.,  235. 
"Gates  vs.  Salmon.  40  Cal..  361. 

Hazen  vs.  Barnett,  50  Mo..  506. 


358  JOINT  ESTATKS. 

Courts  of  equity  have  generally  jurisdiction  over  partition 
proceedings.  In  many  States  the  probate  or  surrogate  courts 
have  jurisdiction  for  the  purpose  of  partitioning  the  real  prop- 
erty of  deceased  persons.  For  the  practice  in  reference  to  par- 
tition proceedings,  the  student  must  consult  the  statutes  and 
decisions  in  his  own  State. 

AT  THE  COMMON  LAW,  IN  THE  ABSENCE  OF  AN  AGREE- 
MENT, A  TENANT  IN  COMMON  OR  IN  JOINT  TENANCY,  IN 
POSSESSION,  IS  NOT  ACCOUNTABLE  TO  HIS  CO-TENANTS  FOR 
THE  USE  AND  PROFITS  OF  THE  LAND,  UNLESS  HE  EXCLUDES 
THEM  FROM  POSSESSION. 

The  reason  of  this  rule  seems  to  be  that  each  tenant,  by 
virtue  of  his  interest,  was  entitled  to  occupy  the  entire  land 
in  conjunction  with  his  co-tenants,  if  they  entered,  or  alone 
if  they  did  not.  "The  occupancy  of  one  tenant  was  warranted 
by  his  own  right  and  in  itself  gives  rise  to  no  cause  of  action, 
in  favor  of  his  co-tenants."67 

If  the  possession  of  one  tenant  is  under  an  agreement  to 
pay  rent,  or  if  he  excludes  his  co-tenants  from  possession,  he 
is  accountable  to  the  tenants  not  in  possession,  for  their  share 
of  the  profits  or  rent  of  the  land.68 

In  those  cases  in  which  the  tenant  does  not  occupy  the 
property,  but  receives  rent  from  a  third  person,  he  will  be  held 
accountable  to  his  co-tenants  for  their  share  of  the  rent.89 

By  statute,  in  a  number  of  States,  the  common  law  rule  has 
been  changed,  so  that  if  one  tenant  in  common  enters  and 
occupies  more  than  his  share,  he  will  be  held  liable  to  his  co- 

CTEverts  vs.  Beach,  31  Mich.,  135. 
Cutler  vs.  Currier,  54  Me.,  81. 

s\Vard  vs.  Ward,  40  W.  Va.,  611;  29  L.  R.  A..  449. 

Izard  vs.  Badine,  11  N.  J.  Eq.,  403. 

Howard  vs.  Throckmorton,  59  Cal.,  79. 
"Tyler  vs.  Cartwright,  40  Mo.  App.,  37.8. 


JOINT  ESTATES.  359 

tenants  for  the  rents  and  profits  of  the  property  in  excess  of 
his  share.70 

In  those  instances  in  which  one  tenant  is  liable  to  his  co- 
tenants  for  the  use  or  the  rents  of  the  property,  he  may  on  an 
accounting  deduct  amounts  paid  for  keeping  the  premises  in 
necessary  or  proper  repair,  and  for  taxes  and  any  other  proper 
expenditure.71  If  the  tenant  in  possession  of  the  property 
makes  improvements  without  the  consent  of  his  co-tenants,  he 
cannot  compel  a  contribution  from  his  co-tenants.72 

70Pearson  vs.  Cadton,  18  S.  Car.,  76. 

Gage  vs.  Gage,  66  N.  H.,  282;  28  L.  R.  A,,  829. 
"Scantlin  vs.  Allison,  32  Kan.,  376. 

Mahoney  vs.  Mahoney,  65  111.,  406. 

Gayle  vs.  Johnston,  80  Ala.,  395. 
Ward  vs.  Ward,  40  W.  Va.,  611;  29  L.  R.  A.,  449. 
"Bazemore    vs.    Davis,    55    Va.,    504. 


CHAPTER  X. 

USES  AND  TRUSTS. 

The  law  of  real  property,  in  most  of  the  States  of  the  Union, 
is  the  English  law  of  real  property,  as  it  was  at  the  time  of  the 
Revolution,  and  as  it  has  been  modified  by  subsequent  legisla- 
tion in  the  different  States.  The  two  great  systems  of  law  to 
which  all  of  our  law  can  be  traced,  except  modern  and  special 
legislation,  are  the  English  Common  Law,  and  the  Civil  Law 
which  prevailed  in  the  Roman  Empire.  In  those  States  which 
were  English  colonies  at  the  time  of  the  Revolution  the  com- 
mon law  prevails.  In  some  States  which  at  the  date  of  the 
Revolution  were  colonies  of  nations  where  the  civil  law  pre- 
vailed then,  it  still  prevails,  notably  in  Louisiana  and  Califor- 
nia, the  first  being  a  former  colony  cf  France,  and  the  latter,  a 
colony  of  Spanish  origin.  Speaking  generally,  it  may  be  said 
that  the  Latin  nations,  which  does  not  mean  much  more  than 
that  they  have  inherited  their  language  from  the  Romans,  in- 
herited also  their  system  of  laws.  Among  them  may  be  men- 
tioned France,  Spain,  Portugal  and  Roumania.  The  civil  law 
was  also  the  chief  foundation  of  the  Code  Xapoleon,  which  is 
the  principal  basis  of  the  systems  of  law  which  now  prevail 
in  Europe.  While  it  is  not  intended  to  go  into  the  history  of 
our  law  further  than  is  necessary  to  a  clear  understanding  of 
it,  as  it  exists  to-day,  it  is  necessary  to  outline  this  history  in 
some  cases  for  that  purpose.  The  English  common  law,  like 
the  rude  and  warlike  people  among  whom  it  grew  up,  was  sim- 
ple and  rude.  There  was  little  refinement  in  it,  while  on  the 

360 


USES  AND  TRUSTS.  301 

other  hand,  the  civil  law  having  had  its  development  among 
the  most  refined  and  cultured  people  of  the  ancient  civilization, 
abounded  in  refinements  and  subtleties,  as  well  as  in  rules, 
which  were  calculated  to  meet  the  necessities  of  a  thousand 
situations  arising  in  a  state  of  advanced  civilization,  which  did 
not  arise  in  a  primitive  and,  before  the  Norman  conquest,  pat- 
riarchal state  of  society.  English  civilization  advanced  more 
rapidly  than  its  system  of  law  developed,  and  therefore,  the 
English  law  has,  from  time  to  time,  made  large  drafts  oij  the 
system  of  law  which  developed  under  that  elder  civilization. 
Some  of  these  drafts  greatly  enriched  it.  Others,  made  for 
the  purpose  of  evading  some  of  the  salutary  provisions  of  the 
common  law,  had  soon  to  be  rejected.  The  law  of  bailments, 
which  Sir  William  Jones  brought  almost  bodily  into  our  law 
from  the  civil  law,  is  an  example  of  the  first  class.  Uses  and 
trusts  which  were  introduced  into  our  law  by  the  clergy  are  a 
conspicuous  illustration  of  the  latter.  When  uses  arid  trusts 
were  introduced,  the  clergy  had  a  practical  monopoly  of  learn- 
ing and  of  legal  knowledge.  The  theory  of  the  ancient  common 
law  was  that  a  tenant  must  be  able  to  follow  his  lord  to  war. 
In  those  times  the  church  exercised  great  power,  but  because 
members  of  the  clergy  would  not  follow  the  Lord  Paramount 
to  war  they  were  disqualified  from  being  holders  or  tenants  of 
land  under  the  then  existing  feudal  system.  In  order  to  over- 
come this  difficulty  they  introduced  from  the  civil  law  the 
practice  of  having  land  transferred  to  one  who  was  competent 
to  take  it,  but  as  the  phrase  went,  "to  the  use  of  an  ecclesias- 
tical body  which,  under  the  feudal  system,  could  not  lawfully 
take  the  land.  In  this  way,  in  the  course  of  time,  the  eccles- 
iastical corporations  in  England  finally  became  possessed  of 
a  very  large  proportion  of  the  most  valuable  agricultural  lands 
in  the  kingdom.  The  land  being  transferred  to  one  who  was 


362  USES   AND   TRUSTS. 

competent  to  take  it,  the  transfer,  or  conveyance,  was  not  in 
violation  of  the  principles  of  the  common  law.  But,  the  intro- 
duction of  the  words  "to  the  use  of'  under  the  doctrines  of  the 
civil  law,  made  the  conveyance  to  operate  entirely  for  the 
benefit  of  the  ecclesiastical  corporation  and  this  effect  was 
given  to  such  conveyances1  by  the  chancellors,  who  were  always 
ecclesiastics.  There  was  no  lay  chancellor  in  England  until 
the  year  after  Henry  VIII.  had  revolted  against  the  Roman 
Catljplic  Church  and  established  himself  as  the  spiritual  as 
well  as  the  temporal  head  of  the  English  Church. 

The  practice  of  conveying  land  to  one  person  "to  the  use  of" 
another,  having  been  thus  introduced  into  our  law  by  the 
clergy  for  their  benefit,  soon  began  to  be  taken  advantage  of 
by  others.  Many  were  anxious  to  enjoy  all  the  substantial 
benefits  of  the  ownership  of  land  without  being  subject  to  the 
burdens  of  such  ownership,  which  could  only  fall  upon  the  legal 
owner.  And  in  this  way,  was  first  introduced  into  the  English 
law  the  two  kinds  of  ownership  of  land,  legal  ownership,  and 
equitable  ownership.  These  two  kinds  of  ownership  still  sub- 
sist, and  probably  always  will.  But  the  abuses  which  fol- 
lowed quickly  upon  the  introduction  of  uses  and  trusts  soon 
led  to  the  enactment  of  statutes  to  correct  some  of  the  most 
glaring  of  the  abuses,  the  most  important  of  which  is  the 
famous  Statute  of  Uses  now  to  be  considered.  Refined  dis- 
tinctions have  been  drawn  between  uses  and  trusts,  but  they 
are  of  little  practical  importance  at  the  present  day.2 

A  USE  OB  TRUST  EXISTS  WHEN  ONE  PERSON  HOLDS 
THE  LEGAL  TITLE  TO  PROPERTY,  IN  WHICH  ANOTHER 
HAS  A  BENEFICIAL  TITLE  OR  INTEREST  WHICH  IS  RECOG- 
NIZED AND  PROTECTED  BY  A  COURT  OF  CHANCERY,  OR, 

'Called  "fldei  commissa"  in  the  civil  law. 

2At  the  present  day  the  word  use  is  applied  to  naked  trusts  as  these 
are  explained  in  the  text,  and  the  word  trust  to  active  trusts. 


USES   AND   TRUSTS.  363 

AS  IT  IS  INDIFFERENTLY  CALLED,  A  COURT  OF  EQUITY, 
WHICH  BENEFICIAL  INTEREST  IS  NOT  RECOGNIZED  BY 
COURTS  OF  LAW. 

Therefore  it  is  seen  that  there  are  two  kinds  of  estates  or 
rights  known  to  our  law,  legal  estates  and  equitable  estates. 
And  the  difference  is  this:  While  a  court  of  equity  must  recog- 
nize legal  estates  and  rights,  equitable  estates  and  interests 
are  not  recognized  at  all  by  courts  of  law.  The  following- 
brief  statements  may  serve  to  make  clearer  the  part  of  the  law 
now  under  consideration: 

1.  THERE  CAN  BE  NO  EQUITABLE  ESTATE  OR  INTEREST 
IN  ANY  PROPERTY,  UNLESS  THERE  IS  A  LEGAL  ESTATE  IN 
THE   SAME  PROPERTY. 

2.  IT  IS  THE  SPECIAL  FUNCTION  OF  COURTS  OF  EQUITY 
TO  PROTECT  THE  RIGHT  OF  THE  OWNER  OF  THE  EQUITABLE 
ESTATE  OR  INTEREST,  AGAINST  WRONG  OR  INJUSTICE,  AT 
THE  HANDS  OF  THE  PERSON  HOLDING  THE  LEGAL  TITLE. 

Remembering  what  has  been  said,  that  the  chief  object  of 
introducing  uses  and  trusts  into  the  common  law  was  to  en- 
able an  equitable  owner  to  escape  the  burdens  of  legal  owner- 
ship, it  might  be  expected  that  a  legislative  remedy  would  be 
sought.  Among  the  burdens  which  inhered  in  legal  owner- 
ship, that  were  evaded  by  equitable  ownership  may  be  men- 
tioned, dower,  tenancy  by  the  curtesy,  the  disability  to  dispose 
of  real  property  by  will,  forfeitures  to  the  king  and  others. 
The  object  of  the  Statute  of  Uses,  27  Henry  VIII.,  Chap.  10  (A. 
D.  1536),  was  to  frustrate  fraudulent  results  and  the  subversion 
of  the  rules  affecting  real  property  as  established  by  the  com- 
mon law,  and  this  was  accomplished  by  transmuting  equitable 
estates  into  legal  estates.3  Either  as  a  part  of  the  common 

3The  Statute  of  Uses  in  substance  provided  that  whenever  any  per- 
son should  be  seised  of  any  lands  to  the  use,  confidence  or  trust  of  an- 
other, the  latter  should  become  seised  of  a  legal  estate  of  the  same 
quality  and  duration  as  his  beneficial  interest. 


I'SKS    AM)    TRUSTS. 

law,  or,  by  legislative  enactment  on  the  subject,  the  Statute 
of  Uses,  as  amended  by' the  courts,  or,  to  put  it  in  another  form, 
what  was  left  of  it  by  the  courts,  prevails  in  the  United  States. 

USES  AND  TRUSTS,  EXCEPT  AS  AUTHORIZED  AND  MODI- 
FIED BY  STATUTE,  ARE  ABOLISHED,  AND  EVERY  ESTATE 
AND  INTEREST  IN  LANDS  IS  DEEMED  A  LEGAL  RIGHT,  COG- 
NIZABLE AS  SUCH  IN  THE  COURTS  OF  LAW,  EXCEPT  WHEN 
OTHERWISE  PROVIDED  BY  STATUTE. 

EVERY  ESTATE  HELD  AS  AN  USE,  AND  EXECUTED  UN- 
DER THE  LAW,  IS  REGARDED  AS  A  LEGAL  ESTATE. 

EVERY  PERSON  WHO,  BY  VIRTUE  OF  ANY  GRANT,  AS- 
S^GNMENT  OR  DEVISE,  IS  ENTITLED  TO  THE  ACTUAL  POS- 
SESSION OF  LANDS,  AND  THE  RECEIPT  OF  THE  RENTS  AND 
PROFITS  THEREOF,  IN  LAW  OR  IN  EQUITY,  IS  DEEMED  TO 
HAVE  A  LEGAL  ESTATE  THEREIN,  OF  THE  SAME  QUALITY 
AND  DURATION,  AND  SUBJECT  TO  THE  SAME  CONDITIONS 
AS  HIS  BENEFICIAL  INTEREST. 

It  would  be  an  idle  task  to  recapitulate  here  the  various 
decisions  by  which  the  Statute  of  Uses  has  been  denuded  of 
many  of  its  provisions.  The  authors  conceive  it  to  be  their 
function  to  expound  the  law  as  it  is  administered  in  the  courts 
at  the  present  writing  and  much  of  the  learning  on  this  sub- 
ject contained  in  comparatively  modern  law  books  is,  and  has 
been  for  many  years,  obsolete. 

.Following  our  train  of  thought  on  the  subject  under  dis- 
cussion, the  next  important  matter  to  be  called  to  the  attention 
of  the  reader  is  this.  Under  the  provisions  of  the  Statute  of 
Uses,  when  in  a  particular  case,  it  does  transmute  an  equit- 
able estate  into  a  legal  estate,  it  is  a  saying  among  lawyers 
that  the  statute  "executes  the  use,"  i.  e.,  it  is  not  necessary  for 
the  person  holding  the  legal  title  to  execute  a  conveyance  to 
the  person  holding  the  equitable  title  to  confer  upon  the  latter 
1he  complete  legal  title. 


AND  TUCSTS.  365 

THE  STATUTE  OF  USES  ONLY  EXECUTES  NAKED  USES. 

A  NAKED  USE  IS  ONE  IN  WHICH  THE  PERSON  IN  WHOM 
THE  LEGAL  ESTATE  IS  VESTED  HAS  NO  BENEFICIAL  IN- 
TEREST IN,  OR  DUTY  CONNECTED  WITH,  THE  TRUST  TO 
WHICH  HIS  LEGAL  TITLE  IS  SUBJECT. 

If  the  trustee  has  a  beneficial  interest  in  the  trust,  as  for 
instance,  a  right  to  a  salary  or  other  compensation  for  being 
a  trustee,  the  statute  will  not  execute  the  use,  nor  will  it 
execute  the  use  when  the  trustee  is  charged  with  an  active 
duty  or  is  vested  with  a  personal  discretion  as  to  the  manage- 
ment of  the  trust  estate,  whether  with  or  without  compensa- 
tion. Thus  from  this  point  of  view: 

TRUSTS  ARE  DIVIDED  INTO  ACTIVE  TRUSTS  AND  PAS- 
SIVE OR  NAKED  TRUSTS. 

From  the  next  point  of  view: 

ACTIVE  TRUSTS  ARE  DIVIDED  INTO  EXECUTED  AND 
EXECUTORY  TRUSTS, 

The  distinction  between  executed  and  executory  trusts  is 
this: 

THE  INSTRUMENT  WHICH  CREATES  AN  EXECUTED 
TRUST  DETERMINES  THE  EXACT  LIMITS  OF  THE  TRUST  AND 
LEAVES  NOTHING  TO  BE  DETERMINED  BY  CONTINGENCIES 
WHICH  MAY  ARISE,  OR  TO  THE  DISCRETION  OF  THE  TRUS- 
TEE. 

THE  INSTRUMENT  WHICH  CREATES  AN  EXECUTORY 
TRUST  LEAVES  SOMETHING  TO  BE  DETERMINED  BY  CON- 
TINGENCIES WHICH  MAY  ARISE,  OR  BY  THE  DISCRETION 
OF  THE  TRUSTEE. 

The  meanings  attached  to  the  words  executed  and  execu- 
tory in  connection  with  the  law  of  trusts  is  quite  different 
from  the  meanings  attached  to  these  words  in  the  law  of  con- 
tracts. In  the  law  of  contracts,  an  executed  contract  is  a 
contract  which  has  been  fully  performed  by  the  party  seeking 
legal  relief  for  the  'non-performance  of  the  contract  by  the 
other  party  to  it. 


366  USES   AND   TRUSTS. 

An  executor}-  contract  is  one  in  which  neither  party  has 
performed  all  of  the  duties  devolved  upon  him  by  the  stipula- 
tions of  the  contract.  In  the  law  of  contracts  the  distinction 
is  only  important  where  a  suit  is  brought  upon  the  contract, 
by  one  of  the  parties  to  the  contract  against  the  other  for 
non-fulfillment  of  his  part  of  the  contract. 

It  is  greatly  to  be  regretted  that  there  should  be  so  much 
jargon  in  the  phraseology  of  the  law,  but  it  is  necessary  to 
explain  the  different  senses  in  which  certain  words  are  used 
in  the  decisions  and  by  text  writers,  so  that  the  reader,  in  his 
effort  to  attain  a  knowledge  of  the  law,  may  not  be  led  astray 
by  his  conception  of  the  sense  in  which  words  are  used.  The 
next  sense  in  which  the  word  trust  is  used  by  lawyers  will  be 
best  apprehended  by  giving  the  definitions  which  are  commonly 
given  of: 

1.  Express  Trusts. 

2.  Implied  Trusts. 

AN  EXPRESS  TRUST  IS  A  TRUST  CREATED  BY  THE 
OWNER  OF  THE  LAND  IN  THE  INSTRUMENT  BY  WHICH  HE 
CONVEYS  THE  TITLE  TO  AN  ESTATE,  TO  HIS  TRUSTEE. 

Express  trusts  are  the  trusts  of  which  we  have  been  writ- 
ing, and,  properly  speaking,  there  are  no  other  kinds  of  trusts, 
because  the  essential  idea  of  a  trust  is  that  it  springs  from  a 
personal  confidence  reposed  by  the  creator  of  the  trust  in  the 
person  to  whom  the  execution  of  the  trust  is  confided.  Implied 
trusts  have  no  such  basis,  and  therefore  philosophically  con- 
sidered, they  should  be  classed  simply  as  duties  imposed  and 
enforced  by  courts  of  equity  on  persons  who,  having  acquired 
the  legal  title  to  real  estate,  owe  certain  duties  to  persons  who 
have  just  claims  which  should  be  satisfied  out  of  that  real 
estate,  and  which  claims  are  only  cognizable  in  courts  of  equity. 
But  a  phrase  having  once  been  introduced  into  the  law,  and 


USES   AND   TRUSTS.  367 

generally  adopted,  must  be  explained  in  the  sense  in  which  it 
is  used  by  courts.     Therefore  we  say: 

AN  IMPLIED  TRUST  IN  LAND  ARISES  WHEN  THE  HOLD- 
ER OF  THE  LEGAL  TITLE  TO  THE  LAND  OWES  SUCH  A  DUTY 
TO  ANOTHER  TO  USE  THAT  PARTICULAR  LAND  FOR  THE 
BENEFIT  OF  THE  OTHER  AS  A  COURT  OF  EQUITY  WILL  EN- 
FORCE. 

Implied  trusts  are  divided  in  the  nomenclature  of  the  law 
into : 

1.  Resulting  Trusts. 

2.  Constructive  Trusts. 

As  these  words  are  used,  the  distinction  between  them  is 
shown  by  the  following  definitions: 

A  RESULTING  TRUST  IS  RAISED  BY  EQUITY  TO  CARRY 
OUT  THE  PRESUMED  INTENTION  OF  THE  PARTY  AS  A  RE- 
SULT OF  WHOSE  ACT  THE  TRUST  ARISES. 

A  CONSTRUCTIVE  TRUST  IS  RAISED  BY  EQUITY  TO  EF- 
FECT THE  ENDS  OF  JUSTICE  AND  TO  FRUSTRATE  A  POS- 
SIBLY FRAUDULENT  INTENTION  OF  THE  PARTIES  WHOM 
EQUITY  MAKES  TRUSTEES  AGAINST  THEIR  WILL. 

From  a  careful  consideration  of  these  definitions,  it  will  be 
readily  perceived  wherein  lies  the  essential  distinction  between 
]•( 'stilting  and  constructive  trusts.  In  resulting  trusts  the 
•court  looks  to  what  it  considers  must  have  been  the  real  intent 
of  the  party  in  case  an  emergency,  not  provided  for  by  an  ex- 
press trust,  should  arise.  In  constructive  trusts  the  court  does 
not  consider  at  all  the  question  of  real  intent,  but  by  a  legal  fic- 
tion ascribes  to  the  party  whom  it  constitutes  a  trustee  a  pre- 
sumptive intent  to  do  that  which  justice  requires,  under  the 
circumstances  of  the  particular  case.  This  presumptive  intent 
is  iu  many,  but  not  in  all  cases,  exactly  contrary  to  the  real 
intent  of  the  constructive  trustee. 

Resulting  trusts  might  well  have  been  denominated  rever- 
sionary trusts,  for  those  are  the  only  kind  which  are  trulv 


368  USES   AND   TRUSTS. 

resulting  trusts.  Suppose  that  A  conveys  land  to  B,  by  deed 
taking  immediate  effect,  in  trust  to  use  the  rents  and  profits 
derived  from  said  land  after  C  (now  10  years  of  age)  becomes 
21  years  of  age  to  the  support  of  C  during  his  life  time.  There 
are  two  situations  for  which  such  an  instrument  does  not 
provide.  We  are  speaking  now  of  a  deed  which  takes  imme- 
diate effect  after  delivery.  After  the  deed  is  delivered.  A  is 
divested  of  his  legal  title  and  it  becomes  vested  in  B.  These 
questions  arise: 

1.  Who  is  to  enjoy  the  rents  and  profits  until  C  becomes 
21  years  of  age? 

2.  Who  is  to  enjoy  the  rents  and  profits  after  the  death  of 
C;  or,  what  becomes  of  the  title  to  the  land? 

In  the  first  case  there  is  a  resulting  trust  to  A  and  his 
heirs  to  enjoy  the  rents  and  profits  until  C  becomes  of  ag..\ 
because  the  language  leads  irresistibly  to  the  conclusion  that 
this  was  what  was  intended. 

In  the  second  case  the  purpose  of  the  trust  having  failed, 
or  having  been  accomplished,  there  is  a  resulting  trust  to  A 
and  his  heirs,  anji  the  trust  having  become  a  naked  trust  the 
statute  "executes  the  trust"  and  revests  the  legal  estate  in  A 
or  his  heirs.  And  this  because  in  such  case  there  is  a  pre- 
sumption that  this  was  A's  intent  in  making  the  deed,  there 
being  nothing  in  the  deed  which  indicates  an  intention  that 
B  shall  take  any  personal  interest  or  benefit  under  it. 

There  is  a  trust  which  arises  when  land  is  bought  with  A's 
money  and  the  title  is  taken  in  the  name  of  B,  which  is  usually 
called  a  resulting  trust  by  the  courts  and  text  writers,  but  as 
will  be  seen,  it  is  impossible  to  range  all  of  the  decided  cases 
in  which  an  implied  trust  is  raised  under  that  head.  For,  as 
we  have  seen,  the  essential  difference  betwen  a  resulting  and 
a  constructive  trust,  is  that  in  what  is  properly  denominated 


USES   AND   TRUSTS.  369 

a  resulting  trust,  the  courts  seek  for  the  real  intent  of  the 
person  for  whose  benefit  an  implied  trust  is  raised,  while  in 
constructive  trusts  no  such  inquiry  is  made.  There  are  some 
cases  where  an  implied  trust  is  claimed,  while  land  is  pur- 
chased with  the  money  of  one  and  the  title  is  taken  in  the 
name  of  another,  in  which  the  decision  is  controlled  by  what 
the  court  finds  was  the  real  intent  of  the  person  who  paid 
for  the  land.  Such  may  be  properly  classed  as  resulting  trusts. 

There  are  other  cases  in  which  the  court  pays  no  attention 
to  this  question  and  such  latter  trusts  are  properly  classed 
as  constructive  trusts. 

There  will  be  no  better  opportunity  than  now  to  say  what 
should  always  be  said  to  a  student  of  the  law.  Books  are 
written,  partly  with  the  idea,  that  a  student  having  mastered 
their  contents,  can  "'pass  his  examination,"  and  partly  with 
the  idea  that  the  new  book  will  more  clearly  than  any  elder 
book  set  forth  the  fundamental  principles  of  the  law.  It  is 
to  be  regretted  that  so  much  space  in  new  text  books  is  taken 
up  in  discussing  questions  which  are  now  of  no  practical  im- 
portance. And  whether  a  particular  trust  is  to  be  classed  as 
a  resulting  or  constructive  trust  is  of  no  possible  consequence. 
But  it  is  of  consequence  that  a  lawyer  should  have  clear  no- 
tions of  the  principles  on  which  equity  raises  an  implied  trust, 
whether  it  is  called  a  resulting  or  a  constructive  trust.  Be- 
cause it  is  the  underlying  and  fundamental  principles  by  which 
the  result  of  any  particular  litigation  is  finally  determined.  It 
is  a  too  frequent  error  to  suppose  that  our  law  is  a  correctly 
articulated  skeleton,  rather  than  a  living,  breathing,  growing 
body.  As  is  luminously  explained  by  Blackstone,  decided  cases 
are  evidence  of  what  the  law  is,  but  the  evidence  of  any  par- 
ticular case  is  not  conclusive.  The  law  itself  is  a  current 
flowing  with  the  stream  of  human  life  and  the  decisions  can 


370  .  USES   AND  TRUSTS. 

only  be  considered  as  straws  and  driftwood  tending  to  show 
in  which  direction  the  current  is  flowing.  But  sometimes  a 
decision  is  like  some  trunks  of  trees  which  in  the  mighty 
Mississippi  become  snags,  and  until  they  are  removed  turn 
the  stream  into  false  channels. 

It  would  only  be  natural  that  the  reader  should  be  curious 
to  know  what  is  the  underlying  reason  for  constructive  trusts. 
Except  in  actions  of  replevin  and  ejectment,  a  court  of  law 
affords  no  redress  for  a  civil  wrong,  except  by  awarding  a 
personal  judgment  for  damages  against  the  wrongdoer.  Where 
he  is  irresponsible  this  remedy  is  inadequate.  Pending  the 
action  the  wrongdoer  may  transfer  the  property  or  fund  which 
justice  requires  shou-ld  be  appropriated  to  the  satisfaction  of 
the  claim  of  the  party  wronged,  to  an  innocent  purchaser, 
that  is,  one  without  knowledge  or  notice  that  justice  requires 
that  it  should  be  specifically  preserved  to  satisfy  a  just  claim 
against  this  specific  property.  In  such  cases  equity  can  reach 
out  and  not  only  summon  the  offender  into  court,  but  also  pre- 
serve the  specific  property  to  satisfy  the  claim  of  the  complain- 
ant if  it  shall  be  established.  This  is  accomplished  as  to  per- 
sonal property  by  injunctions  and  receivers.  When  real  prop- 
erty is  involved  it  is  accomplished  by  injunctions  and  notices 
of  "lis  pendens,"  filed  with  registers  of  deeds,  and  in  some 
cases,  by  putting  the  real  property  into  the  hands  of  a  receiver, 
pending  the  litigation.  While,  as  has  been  said,  the  doctrine 
of  constructive  trusts  is  of  recent  origin  it  is  now  so  firmly 
establshed  that  the  following  general  principle  may  be  an- 
nounced: 

WHENEVER  JUSTICE  REQUIRES  THAT  SPECIFIC  PROP- 
ERTY SHOULD  BE  DEVOTED  TO  SATISFY  A  PARTICULAR 
CLAIM,  EQUITY  WILL  RAISE  A  CONSTRUCTIVE  TRUST  AS 
TO  THAT  PROPERTY  AND  PRESERVE  IT  TO  SATISFY  THAT 
CLAIM. 

This  principle  requires  no  elaboration  and  will  be  appre- 
hended most  clearly  by  a  consideration  of  the  cases  in  the 


USES   AND   TRUSTS.  371 

note.4  Many,  but  not  all,  constructive  trusts  arise  out  of  fraud- 
ulent or  wrongful  conduct  by  the  holder  of  the  legal  title,  as, 
for  instance,  when  one  steals  or  embezzles  the  money  of  another 
and  invests  it  in  land,  and  the  money  can  be  traced  into  the 
land,  equity  will  follow  it  into  the  land,  and  lay  hold  of  the 
land  for  the  benefit  of  the  person  whose  money  paid  for  it,  as 
against  everybody  but  a  purchaser  for  value  without  knowl- 
edge or  notice  of  the  origin  of  the  fund  with  which  his  vendor 
bought  the  property,  or,  as  the  legal  phrase  is,  a  bona  fide  pur- 
chaser. Such  trusts  are  denominated  trusts  "ex  malificio." 

But  the  underlying  principle  as  to  all  constructive  trusts 
is  that  equity  will  intervene  to  prevent  one  from  robbing  Peter 
to  pay  Paul.  Paul  may  be  a  general  creditor,  or  he  may  be  a 
purchaser  with  notice  of  Peter's  equitable  right  to  the  fund  or 

4  A  transaction  that  is  in  fraud  of  one's  rights  may  be  construed  in 
equity  so  as  to  be  a  means  of  saving  and  protecting  them. 

Where  a  conveyance  is  obtained  for  fraudulent  ends  or  under  op- 
pressive circumstances,  the  party  deriving  title  is  converted  into  a 
trustee,  if  necessary  for  administering  relief. 

One  who  has  sold  mortgaged  land  with  warranty  and  has  cov- 
enanted to  pay  off  the  mortgage,  cannot  make  title  in  himself  as 
against  his  grantee  by  allowing  foreclosure  and  redeeming  the  land. 

Huxley  vs.  Rice,  40  Mich.,  73. 

So  where  a  son  acting  as  agent  for  his  mother  invested  her  estate 
in  grain  and  other  commodities. 

Clapp  vs.  Emory,  98  111.,  523,  531. 

So  when  the  confidential  agent  of  an  aged  and  illiterate  man,  hav- 
ing his  principal's  money  to  invest,  made  a  loan  of  a  portion  of  it,  tak- 
ing a  note  and  mortgage  to  himself  and  when  the  debt  became  due 
foreclosed  the  mortgage,  and  bid  in  the  property,  he  was  held  to  hold 
the  title  to  the  land  in  favor  of  the  principal. 

Cookson  vs.  Richardson,  69  111.,  137. 

Certain  parties  who,  by  fraudulently  representing  that  the  entire 
assets  and  stock  of  a  corporation  belonged  to  them,  obtained  a  decree 
dissolving  the  corporation,  and  took  possession  of  its  assets,  held  lia- 
ble in  equity  to  be  decreed  trustees  ex  maleficio  as  respects  bona-fide 
stockholders. 

Bailey's  Appeal,  96  Pa.  St.,  253. 

And  equity  will  charge  land  paid  for  in  part  with  money  known 
to  have  been  stolen  from  a  bank,  with  a  trust  in  favor  of  the  bank,  for 
the  amount  so  used. 

Bank  vs.  Barry,  125  Mass.,  20. 


372  USES   AND   TRUST'S. 

property,  or  he  may,  in  good  faith,  receive  the  property  as  a 
gift.  In  these  and  all  similar  cases  equity  will  raise  a  con- 
structive trust  in  favor  of  the  person  or  persons  who,  in  justice, 
is  entitled  to  the  real  or  personal  property  or  its  proceeds,  and 
it  will  follow  it,  as  to  such  persons,  so  long  as  it  can  be  clearly 
traced  back  to  its  originally  wrongful  origin.  On  the  other 
hand,  it  must  always  be  kept  in  mind  that: 

NO  CONSTRUCTIVE  TRUST  CAN  BE  FASTENED  UPON  A 
FUND  OR  PROPERTY  IN  THE  HANDS  OF  A  BONA  FIDE  TAKER 
FOR  VALUE.  , 

Constructive  trusts  are  of  comparatively  recent  origin.  In 
an  admirable  treatise  on  equity,  by  Mr.  Adams,  an  English 
lawyer,  the  author  treats  of  resulting  trusts,  but  makes  no  men- 
tion of  constructive  trusts.  Constructive  trusts  are  introduced 
into  the  treatise  in  a  note  to  the  fifth  American  edition,  by 
Henry  Wharton.  We  reproduce  in  the  note  the  original  text  of 
Mr.  Adams,  and  the  note  of  Mr.  Wharton,  which  contains  a 
very  clear  exposition  of  the  general  doctrine  as  to  constructive 
trusts.5 

'Resulting  trusts  occur  where  an  estate  has  been  purchased  in  the 
name  of  one  person,  and  the  purchase  money  or  consideration  has  pro- 
ceeded from  another.  In  many  States  the  statutes  have  abolished  such 
resulting  trusts,  except  where  the  person  who  pays  the  consideration 
for  the  land  has  the  title  taken  in  the  name  for  fraudulent  purposes.  In 
this  case  the  presumption  is,  that  the  party  paying  for  the  estate  in- 
tended it  for  his  own  benefit,  and  that  the  nominal  purchaser  is  a  mere 
trustee.  This  presumption  exists  in  all  cases  where  the  conveyance 
of  a  legal  estate  is  made  to  one  who  has  not  really  advanced  the  price. 
And  it  is  equally  applicable  whether  such  conveyance  be  in  the  name 
of  a  stranger  only,  without  mention  of  the  actual  purchaser,  or  in  the 
joint  names  of  a  stranger  and  the  purchaser  himself;  whether  the 
estate  be  originally  conveyed  to  one  purchaser  out  of  many,  or  become 
ultimately  vested  in  one  as  the  survivor,  under  an  assurance  which  has 
created  a  legal  joint  tenancy;  or  whether  in  the  case  of  several  nom- 
inal purchasers,  an  immediate  joint  estate  be  given  to  all,  or  the  grant 
be  to  take  successively  one  after  another.  Whatever  be  the  peculiar 
form  in  which  the  conveyance  is  made,  it  does  not  affect  the  presump- 
tion that  an  estate  or  share  of  an  estate,  vested  in  a  man  who  did  not 
pay  its  price,  was  not  intended  by  way  of  beneficial  ownership;  and 
therefore,  in  all  those  cases  alike,  if  there  be  no  evidence  of  an  opposite 


USES   AND   TRUSTS.  373 

There  are  necessarily  three  persons  involved  in  every  use 
or  trust.  The  person  who  creates  the  trust  by  will  is  called  the 
devisor.  If  he  creates  it  by  deed  he  is  the  grantor. 

If  a  use  is  spoken  of,  the  person  who  receives  the  legal  title 
is  called  the  feoffee,  to  use,  and  the  owner  of  the  beneficial 
use  is  called  the  cestui  que  use. 

If  a  trust  is  spoken  of,  the  one  who  has  received  the  legal 
title  is  a  trustee,  and  the  owner  of  the  equitable  interest  is 
the  cestui  que  trust. 

Where  an  express  trust  is  created,  the  trustee  is  held  to  the 
strictest  rules  of  loyalty  and  good  faith  toward  his  cestui  que 
trust,  and  equity  will  scrutinize  his  administration  of  the  trust, 
and  all  of  his  dealings  with  his  cestui  que  trust  with  a  jealous 
eye. 

Equity  regards  the  trustee  in  an  express  trust  as  one  ap- 
pointed to  take  special  care  of  the  interests  of  his  cestui  que 

intention,  the  trust  of  such  legal  estate  will  result  to  the  parties  who 
have  advanced  the  purchase-money,  in  proportion  to  the  amount  of 
their  respective  advances.  And  as  trusts  of  rhis  kind  are  expressly 
exempted  from  the  Statute  of  Frauds  and  it  is  competent  for  the 
real  purchaser  to  prove  his  payment  of  the  purchase-money  by  parol 
evidence,  even  though  it  be  otherwise  expressed  in  the  deed. 

The  doctrine,  however,  is  merely  one  of  presumptive  evidence.  It  is 
not  a  rule  of  law  that  a  trust  must  be  intended  on  such  a  purchase, 
but  it  is  a  reasonable  presumption,  as  a  matter  of  evidence,  in  the  ab- 
sence of  proof  to  the  contrary.  It  is  therefore  open  to  the  nominal 
purchaser  to  rebut  that  presumption  by  direct  or  circumstantial  evi- 
dence to  the  contrary.  He  may,  for  instance,  show  that  it  was  in- 
tended to  give  him  the  beneficial  interest,  either  altogether  or  in  part; 
that  the  purchase-money  was  advanced  by  way  of  loan  to  himself, 
and  the  party  advancing  it  intended  to  become  his  creditor,  and  not 
the  equitable  owner  of  the  estate;  or  that  the  purchase-money,  on  a 
conveyance  in  joint  tenancy,  was  advanced  by  the  several  purchasers 
in  equal  shares,  so  that  there  is  no  improbability  of  an  estate  in  joint 
tenancy  having  been  really  contemplated,  with  equal  chance  of  sur- 
vivorship to  all.  In  this  manner  a  counter  presumption  may  be  raised 
in  opposition  to  the  original  one;  and  this  again  in  its  turn  may  be  met 
by  other  evidence  of  an  opposite  intention.  Lastly,  the  evidence  which 
is  thus  brought  forward  on  either  side  may  be  derived  either  from  con- 
temporaneous declarations  or  other  direct  proof  of  intention,  or  from 
the  circumstances  under  which  the  transaction  took  place,  or  from  the 
subsequent  mode  of  treating  the  estate,  and  the  length  of  time  during 


374  USES   AND   TRUSTS. 

trust,  and  in  all  matters  pertaining  to  the  trust  will  hold  him 
to  a  strict  account  and  will  not  permit  him  to  use  his  position 
as  trustee  to  obtain  any  advantage  of  the  cestui  que  trust,  or 
any  benefit  out  of  the  trust  estate,  except  such  as  is  allowed 
him  in  the  instrument  creating  the  trust,  or  what  may  be  al- 
lowed him  by  a  court  of  equity  as  a  reasonable  compensation 
for  his  services  and  expenses  in  the  execution  of  the  trust.  The 
relation  existing  between  a  trustee  and  his  cestui  que  trust  is 
analogous  to  the  relation  existing  between  guardian  and  ward, 
or  between  husband  and  wife. 

Charitable  trusts  are  trusts  created  for  what  the  law  recog- 
nizes as  charitable  uses.  They  differ  chiefly  from  other  trusts 
in  that  the  language  of  the  instrument  creating  them  is  con- 

which  a  particular  mode  of  dealing  with  it  has  been  adopted  on  all 
sides. 

The  most  important  class  of  cases  in  which,  as  an  ordinary  rule, 
this  counter  presumption  arises,  are  those  where  a  purchase  has  been 
made  in  the  name  of  a  child,  or  of  one  towards  whom  the  party  paying 
the  money  has  placed  himself  in  loco  parentis.  The  general  principle 
on  which  this  counter  presumption  proceeds  is  that,  inasmuch  as  it  is 
a  father's  duty  to  provide  for  his  child,  it  is  not  improbable  that  he 
may  make  the  provision  by  giving  the  child  an  estate,  or  by  purchasing 
one  for  him  in  his  uame.  And,  therefore,  if  he  does  make  a  purchase 
in  the  child's  name,  the  prima  facie  probability  is  that  lu«  intended 
it  as  a  provision  or  advancement.  The  doctrine  on  this  point  will 
be  hereafter  separately  considered  under  the  head  of  Meritorious  Con- 
sideration. 

In  accordance  with  the  same  principle  it  is  held  that  if  land  is  ac- 
quired as  the  substratum  of  a  partnership,  or  is  brought  into  and  used 
by  the  partnership  for  partnership  purposes,  there  will  be  a  trust  by 
operation  of  law  for  the  partnership,  as  tenants  in  common,  although 
a  trust  may  not  have  been  declared  in  writing,  and  the  ownership 
may  not  be  apparently  in  all  the  members  of  the  firm,  or  if  in  all, 
may  apparently  be  in  them,  not  as  partners  but  as  joint  tenants. 

Another  class  of  car-es,  in  which  the  circumstances  give  rise  to  the 
presumption  of  a  resulting  trust,  is  where  a  man,  whose  duty  it  was  to 
create  a  trust,  has  done  an  ambiguous  act,  and  the  Court  construes 
such  act  as  having  been  done  in  accordance  with  that  duty. 

If,  thei'efore.  a  man  is  a  trustee  of  certain  funds  for  investment 
in  land,  or  has  bound  himself  by  covenant  to  lay  out  money  in  land, 
and  he  purchases  an  estate  at  a  corresponding  price,  it  will  be  pre- 
sumed, independently  of  positive  evidence  that  his  object  in  the  in- 
vestment was  to  effectuate  the  trust;  and  a  trust  may  be  implied  ac- 
cordingly. But  it  will  be  observed  that  this  is  not  as  a  hostile  or  com- 


USES   AND   TRUSTS.  375 

strued  more  liberally  for  the  purpose  of  effectuating  the  pur- 
pose of  the  one  creating  the  trust.  And  in  case  it  becomes  im- 
possible to  apply  the  fund  to  the  exact  charitable  use  specified, 
equity  will  sometimes  permit  the  fund  to  be  devoted  to  some 
other  charitable  use  of  a  similar  character.  This  is  what  is 
known  as  the  doctrine  of  cy-pres.  But  the  courts  of  some 
States  refuse  to  acknowledge  anydistinction  between  charit- 
able trusts  and  others. 

There  is,  however,  one  distinction  between  charitable  cor- 
porations and  business  corporations  which  is  generally  if  not 
universally  recognized.  A  charitable  corporation  is  not  liable 
in  damages  for  injuries  caused  by  the  negligence  of  its  ser- 
vants. 

POWERS. 

A  POWEB  IS  AN  AUTHORITY  TO  DO  SOME  ACT  IN  RELA- 
TION TO  LANDS,  OR  THE  CREATION  OF  ESTATES  THEREIN, 

pulsory  decree,  but  on  the  supposition  that  such  a  result  was  really  con- 
templated; and,  therefore,  if  the  contrary  be  proved,  as  by  showing 
that  the  purchase  was  made  under  a  mistaken  opinion  of  the  trust, 
the  presumption  cannot  be  raised.  It  is  otherwise  if  the  covenant  be  to 
settle  such  land  as  the  covenantor  may  have  on  a  specified  day,  or  to 
purchase  a  specific  estate,  which  he  afterwards  acquires;  for  in  these 
cases  the  trust  attaches  by  virtue  of  the  covenant,  independently  of  any 
intention  in  the  party  bound. 

Adams'  Equity,  5th  Am.  ed.,  109. 

Besides  that  described  in  the  text,  there  is  another  class  of  trusts 
"created  by  operation  or  implication  of  law,"  which  are  usually  de- 
nominated constructive  trusts,  and  are  of  much  importance  and  fre- 
quency. This  class  comprehends  those  cases  where  the  holder  of  the 
legal  estate  in  property  cannot  also  enjoy  the  beneficial  interest,  with- 
out some  established  principle  of  equity.  The  chief  instance  of  this 
occurs  when  the  property  has  been  acquired  by  fraud,  actual  or  con- 
structive. As  the  leading  doctrine  on  this  subject  will  be  found  dis- 
cussed in  other  parts  of  this  volume,  particularly  under  the  head  of 
Rescission  and  Cancellation  (post.  174),  it  is  sufficient  to  state 
here  that  where  a  party,  actively  or  passively  guilty  of  fraud,  has 
thereby  obtained  the  legal  title,  he  is  treated  by  equity,  in  general, 
as  a  mere  trustee  for  the  parties  injured,  and  subjected  to  the  con- 
sequent liabilities.  The  agency  of  constructive  trusts  is  also  em- 
ployed in  cases  where  no  fraud  has  been  committed  in  the  acquisi- 
tion of  the  title,  for  the  vindication  or  enforcement  of  other  equitable 
principles.  Thus,  on  an  agreement  for  the  sale  of  land,  the  vendor  is 


376  USES   AND   TRUSTS. 

OB  OF  CHARGES  THEREON,  WHICH  THE  OWNER  GRANTING 
OR  RESERVING  SUCH  POWER,  MIGHT  HIMSELF  LAWFULLY 
PERFORM. 

The  person  creating  a  power  is  called  the  donor;  the  one  to 
whom  a  power  is  given  is  called  the  donee;  the  one  for  whose 
benefit  the  power  is  created  is  called  the  appointee. 

Powers  may  be  conferred  upon  one  who  hds  already  some 
estate  in  the  land  to  be  affected,  and  whose  own  interest  in 
the  land  may  be  affected  by  the  exercise  of  the  power.  In 
such  a  case  the  power  is  called  appendant  or  appurtenant.  A 
power  may  be  conferred  upon  one  who  has  no  estate  in  the 
land  which  can  be  affected  by  the  exercise  of  the  power.  In 
such  cases  powers  are  called  collateral  or  in  gross. 

Powers  are  general,  or  special  and  beneficial,  or  in  trust. 

before  actual  conveyance  treated  as  trustee  for  the  vendee.  (And  in 
cases  of  part  performance  of  parol  agreements  for  the  sale  of  land  by 
payment  of  purchase-money,  the  vendee  acquires  an  equitable  Interest 
to  the  extent  of  the  purchase-money  paid.  Rose  vs.  Watson,  10  H.  L. 
Gas.,  672;  Barnes'  Appeal,  46  Penna.  St.,  350).  So  of  an  encumbrancer, 
such  as  a  mortgagee,  who  has  obtained  a  conveyance  as  security 
for  the  payment  of  money,  and  the  money  has  been  repaid.  So,  one 
to  whom  property  is  conveyed  by  a  trustee,  without  notice  of  the 
trust,  but  on  no  valuable  consideration,  or  with  actual  or  constructive 
notice,  takes  it  subject  to  the  original  trusts.  Many  other  similar  in- 
stances might  be  put,  but  they  all  reduce  themselves  to  the  general 
principle,  that  wherever  a  man  cannot  hold  property  beneficially  and 
for  himself,  except  by  fraud  or  in  contravention  of  equity,  he  holds  it 
as  trustee  for  those,  who  in  contemplation  of  equity  are  entitled 
thereto.  Constructive,  like  resulting  trusts,  are  excepted  out  of  the 
Statute  of  Frauds,  and  may,  therefore,  be  proved  by  parol.  The  rules 
which  are  applied  to  them,  when  established,  are  in  general  the  samo 
with  those  which  govern  direct  trusts,  but  they  are  not  in  every  re- 
spect identical.  For  instance,  it  is  a  fixed  principle  with  regard  to  th«.> 
latter,  that  lapse  of  time,  by  itself,  will  not  bar  their  enforcement, 
but  in  respect  to  the  former  the  question  of  laches  is  a  most  material 
one,  both  with  reference  to  their  establishment,  and  to  the  consequent 
relief  which  is  given;  indeed,  in  some  cases  the  Statute  of  Limitations 
is  directly  followed.  There  are  other  distinctions,  also,  as  to  the 
privileges  which  trustees  may  claim,  as  to  the  fiduciary  relationship 
of  the  parties,  as  to  costs,  and  other  matters,  which  cannot  be  dwelt 
upon  here,  but  which  are  fully  considered  in  the  text-books  on  the 
subject. 

Adams'  Equity,  5th  Am.  ed..  117. 


USES   AND   TRUSTS.  377 

A  GENERAL  POWER  AUTHORIZES  THE  ALIENATION  IN 
FEE,  BY  DEED,  WILL,  OR  CHARGE  OP  THE  LANDS  EMBRACED 
IN  THE  POWER,  TO  ANY  ALIENEE  WHATEVER.  THE  POWER 
IS  SPECIAL  WHEN  THE  PERSON  OR  CLASS  OP  PERSONS  TO 
TAKE  AS  APPOINTEE  IS  DESIGNATED,  OR  A  LESSER  INTER- 
EST THAN  A  FEE  IS  AUTHORIZED  TO  BE  CONVEYED.  IT 
IS  BENEFICIAL  WHEN  NO  PERSON  OTHER  THAN  THE  DONEE 
HAS,  BY  THE  TERMS  OF  ITS  CREATION,  ANY  INTEREST  IN 
ITS  EXECUTION. 

A  general  power  is  in  trust,  when  any  person  other  than  the 
grantee  of  the  power  is  designated  as  entitled  to  the  whole,  or 
part  of  the  proceeds,  or  other  benefit  to  result  from  the  execu- 
tion of  the  power.  A  special  power  is  in  trust,  when  the  dis- 
positions it  authorizes  are  limited  to  be  made  to  any  person 
or  class  of  persons  other  than  the  grantee  of  the  power;  or 
when  any  person  or  class  of  persons,  other  than  the  grantee, 
is  designated  as  entitled  to  any  benefit  from  the  disposition  or 
charge  authorized  by  the  power. 

A  POWER  DIFFERS  FROM  AN  ESTATE,  IN  THAT  NO  TITLE 
OR  INTEREST  IN  THE  PROPERTY  IS  VESTED  IN  THE  DONEE 
BY  REASON  OF  THE  CREATION  OF  THE  POWER. 

It  is  true  that  the  donee,  by  reason  of  the  power,  has  au- 
thority to  exercise  a  right  to  alienate  or  charge  the  property, 
but  this  right  does  not,  as  in  the  case  of  the  owner  of  an  estate, 
spring  from  an  interest  in  the  property,  but  f-rora  a  delegation 
by  an  owner  of  a  naked  right.  In  this  respect  a  power  differs 
from  a  trust:  for  in  the  latter  the  title  passes  from  the  grantor 
to  the  trustee.  A  power  may  be  created  by  a  deed  or  by  will. 
No  particular  words  are  necessary  to  create  a  power;  any  lan- 
guage from  which  a  clear  intent  to  create  a  power  is  sufficient. 
The  instrument  ought  to  indicate  the  person  to  whom  the 
power  is  granted,  the  persons  or  objects  to  be  benefited,  and 
the  circumstances  or  contingencies  upon  which  the  power  is  to 
be  executed. 


378  USES  AND  TRUSTS. 

NO  PERSON  IS  CAPABLE  IN  LAW  OF  QUANTING  A  POWER, 
WHO  IS  NOT  AT  THE  SAME  TIME  CAPABLE  OF  ALIENATING 
SOME  INTEREST  IN  THE  LAND  TO  WHICH  THE  POWER  RE- 
LATES. 

A  POWER  MAY  BE  VESTED  IN  ANY  PERSON  CAPABLE  IN 
LAW  OF  HOLDING  LANDS,  BUT  CANNOT  BE  EXECUTED  BY 
ANY  PERSON  NOT  CAPABLE  OF  ALIENATING  LAND. 

To  this  statement  there  is  this  exception.  An  infant  may 
execute  a  naked  power  which  is  not  accompanied  by  any  in- 
terest, and  which  does  not  require  the  exercise  of  any  discre- 
tion. As  a  general  rule,  by  statute  a  married  woman  may  now 
execute  a  power  without  the  consent  of  her  husband. 

THE  POWER,  AS  A  GENERAL  RULE,  MUST  BE  EXECUTED 
BY  THE  DONEE  OR  DONEES  NAMED  IN  THE  INSTRUMENT 
CREATING  THE  POWER. 

* 

If  there  are  several  donees,  they  must  all  join  in  execut- 
ing the  power.  It  was  held  in  Michigan,  however,  that  where 
several  persons  were  empowered  to  exercise  a  public  power, 
an  execution  of  the  same  by  a  majority  was  valid  when  all  the 
donees  were  present  to  deliberate.0  If  the  instrument  creating 
the  power  describes  the  donee  by  name,  without  any  official 
description,  such  as  executor,  and  afterwards  one  of  the  donees 
dies,  the  power  does  not  pass  to  the  survivors.  If  the  donees  are 
described,  not  by  name,  but  officially,  as  executors,  or  generally 
as  "my  children,"  on  the  death  of  one  of  such  donees,  the  power 
passes  to  and  may  be  exercised  by  the  survivors.  This  rule 
grows  out  of  the  following  principle: 

WHERE  A  PERSONAL  CONFIDENCE  OR  TRUST  IS  PLACED 
IN  A  DONEE,  THE  POWER  CANNOT  BE  EXERCISED  BY  OR 
BE  DELEGATED  TO,  ANOTHER. 

And  where  the  grant  describes  the  donees  by  name,  it  is  held 
that  a  personal  trust  is  reposed  in  them;  but  where  the  power 
"Scott  vs.  Young  Men's  Ass'n,  1  Douglass,  119. 


USES   AND   TRUSTS.  379 

is  vested  in  a  class,  or  in  certain  officials,  the  power  is  not,  in 
the  absence  of  an  express  provision,  regarded  as  personal.  If 
the  power  attaches  to  the  office,  and  not  to  the  individual,  and 
may  be  exercised  by  the  survivor,  when  the  trust  in  the  donee 
is  personal,  he  may  not  delegate  or  assign  it  to  another.  Neither 
can  the  court  in  such  a  case,  substitute  its  own  discretion  or 
the  discretion  of  a  donee  appointed  by  it,  for  the  discretion 
of  the  donee  in  whom  the  personal  confidence  was  placed  by 
the  donor.  In  some  States  these  rules  have  been  changed  by 
statute,  and  when  a  power  is  vested  in  several  persons  it  may 
be  exercised  by  the  survivor  or  survivors.  Other  statutes 
provide  that  in  the  event  of  the  donee  dying  without  execut- 
ing the  power,  it  may  be  executed  by  the  courts.7 

AS  A  GENERAL  RULE,  A  POWER  MUST  BE  EXECUTED  IN 
THE  MANNER  AND  AT  THE  TIME  PROVIDED  IN  THE  GRANT 
AND  IN  GOOD  FAITH  TO  CARRY  OUT  THE  INTENTION  OF 
THE  DONOR. 

Thus,  a  power  to  sell,  uncoupled  with  any  interest,  does. 
not  confer  a  power  to  mortgage,  or  to  exchange,  or  barter,  or, 
in  many  States,  to  sell  on  credit.8  If  the  grant  creating  the 
power  provides  for  conditions  precedent  to  the  exercising  of 
the  power,  such  conditions  must  be  performed.  Thus,  if  the 
consent  of  some  third  party  is  required  before  the  execution 
of  the  power,  such  consent  must  be  obtained,  and  if  the  third 
person  dies  before  the  execution  of  the  power,  the  power  will 
be  extinguished. 

WHEN  THE  EXECUTION  OF  THE  POWER  IS  DEFECTIVE, 
ITS  PROPER  EXECUTION  MAY  BE  DECREED  IN  FAVOR  OF 
THE  PERSONS  DESIGNATED  BY  A  COURT  HAVING  JURISDIC- 
TION. 

7See  New  York  and  Michigan  Statutes. 

'Campbell  vs.  Foster  Home  Ass'n,  163  Pa.  St.,  609;  26  L.  R.  A.,  117.. 


380  USES   AND   TRUSTS. 

EVERY  TRUST  POWER,  UNLESS  ITS  EXECUTION  OR  NON- 
EXECUTION  IS  MADE  TO  DEPEND  ON  THE  WILL  OF  THE 
DONEE,  IS  IN  MOST  STATES  REGARDED  AS  IMPERATIVE 
AND  IMPOSES  A  DUTY  ON  THE  DONEE,  THE  PERFORMANCE 
OF  WHICH  MAY  BE  COMPELLED  BY  THE  COURTS  OF  EQUITY 
FOR  THE  BENEFIT  OF  THE  PARTIES  INTERESTED. 

At  law,  a  power  requiring  in  its  exercise  the  discretion  of 
the  donee  is  not  imperative,  and  cannot  be  enforced.  The  rule 
stated  is  the  equitable  rule,  and  will  be  applied  only  when  the 
power  is  coupled  with  a  trust.  In  a  number  of  States,  by  stat- 
ute the  execution  of  a  trust  power  may  be  decreed  by  the 
courts  of  equity  for  the  benefit  of  creditors,  or  persons  entitled 
to  the  execution  of  the  trust.9 

EVERY  POWER,  BENEFICIAL  OR  IN  TRUST,  IS  IRREVOC- 
ABLE UNLESS  AN  AUTHORITY  TO  REVOKE  IT  IS  RESERVED 
OR  GRANTED  IN  THE  INSTRUMENT  CREATING  THE  POWEP.. 

A  power  is  extinguished  by  its  complete  execution,  and 
when  appendant  is  destroyed  by  the  alieration  of  the  estate  to 
which  it  is  attached.  Thus,  it  was  held  that  a  power  not 
coupled  with  an  interest  in  land  of  the  donor,  could  not  be  ex- 
ercised after  the  donor  had  parted  with  his  title  to  the  land.10 
This  extinguishment  will  not  result  from  the  conveyance  of 
the  property,  if  the  power  is  in  gross. 

"This  3s  the  rule  in  Michigan,  New  York,  Wisconsin,  Minnesota, 
Dakota  and  Alabama. 
"Fisher  vs.  Fair,  34  S.  C.,  203;  14  L.  R.  A..  333. 


CHAPTER  XI. 

EASEMENTS  AND  LICENSES. 

INCORPOREAL,  HEREDITAMENTS. 

Up  to  this  point  we  have  been  discussing  the  nature  of  real 
property,  meaning  by  that  term  the  thing  itself  or  res.  Out 
of  this  "thing  itself"  or  "res"  sometime  grow  certain  collateral 
rights  which  are  classed  as  real  property,  and  which  pass  with 
the  land  on  its  conveyance  without  any  special  mention.  These 
collateral  rights  are  intangible  and  are  designated  as  incorpor- 
eal hereditaments. 

AN  INCORPOREAL  HEREDITAMENT  IS  A  RIGHT  ISSUING 
OUT  OF  A  THING  CORPOREAL,  OR  CONCERNING  OR  ANNEXED 
TO,  OR  EXERCISEABLE  WITH  THE  SAME. 

Blackstone  mentions  twelve  different  incorporeal  heredita- 
ments; most  of  these  do  not  exist  in  the  United  States,  and  only 
two  require  discussion,  viz.:  Easements  and  Licenses.1 

EASEMENTS. 

AN  EASEMENT  IS  A  RIGHT  TO  USE  THE  LAND  OF  AN- 
OTHER, NOT  INCONSISTENT  WITH  THE  RIGHT  OF  GENERAL 
OWNERSHIP,  AND  WHICH  RIGHT  EXISTS  FOR  THE  BENEFIT 
OF  ONE  IN  POSSESSION  OF  A  NEIGHBORING  TENEMENT.2 

The  nature  of  an  easement  will  be  understood  from  the 
following  statements: 

First.    Easements  are  incorporeal. 

'2  Blk.  Com.,  19. 

"'An  easement  is  an  interest  in  land  created  by  grant  or  agree- 
ment, express  or  implied,  which  confers  a  right  on  the  owner  thereof 
to  some  profit,  benefit,  dominion  or  lawful  use  of  or  over  the  estate  of 
another." 

Huyck  vs.  Andrews,  113  N.  Y.,  81;  3  L.  R.  A.,  789. 

381 


382  EASEMENTS   AND   LICENSES. 

Second.  Easements  are  imposed  on  corporeal  property, 
which  in  this  connection  means  land. 

Third.  An  easement  conveys  no  right  to  a  participation  in 
the  profits  arising  from  such  property. 

Fourth.  There  must  be  two  distinct  tenements,  the  dom- 
inant to  which  the  right  belongs,  and  the  servient  upon  which 
the  obligations  rest. 

First.  Easements  are  incorporeal.  They  are  rights  to  use 
the  land  of  another  in  a  certain  way,  by  one  who  has  no  pro- 
prietary right  in  the  property.  A  right  to  use  land  without 
any  right  to  the  land  or  its  product,  is  a  mere  privilege  without 
corporeal  attributes. 

For  instance,  if  I  have  the  right  to  drive  over  the  land  of 
my  neighbor,  that  is  an  easement  which  confers  no  right  to  the 
«oil  under  the  roadway,  and  what  I  own  is  merely  a  privilege 
of  using  my  neighbor's  land. 

If  I  use  the  soil  in  any  way  not  justified  by  the  easement, 

» 
I  am  guilty  of  trespass,8  and  if  anyone  commits  an  act  on  the 

land  which  does  not  interfere  with  my  easement,  I  have  no 
cause  of  action,  even  though  he  be  a  stranger  without  claim  of 
title.  This  privilege  of  using  the  land  of  niy  neighbor,  while  it 
is  not  a  right  to  the  land  or  its  product,  is  yet  regarded  by  the 
law  as  an  interest  in  the  land;  but  such  interest  from  its  very 
nature  is  incapable  of  an  actual  delivery,  and  therefore  of  liv- 
ery of  seisin,  and  is  an  incorporeal  hereditament. 

Second.  Easements  are  imposed  on  corporeal  property.  A 
contemplation  of  the  particular  easements  hereinafter  dis 
cussed,  such  as  rights  of  way,  right  of  light  and  air,  right  of 
lateral  support,  will  at  once  disclose  that  they  are  rights  in 
corporeal  property. 

"Read  vs.  Leads,  19  Conn.,  182. 


EASEMENTS   AND   LICENSES.  383 

Easements  are  not  imposed  on  persons.  It  is  true  that  the 
owner  of  one  estate  may  by  agreement  be  entitled  to  the  per- 
sonal services  of  the  owner  of  the  neighboring  tenement,  but 
such  a  right  is  not  an  easement. 

The  most,  in  the  case  of  an  easement,  that  can  be  required 
from  the  owner  of  the  servient  tenement,  is  that  he  shall  remain 
passive  and  permit  a  certain  use  to  be  made  of  his  land,  or 
that  he  shall  refrain  from  doing  certain  acts  on  his  premises, 
as  building  so  as  to  shut  out  his  neighbor's  light. 

Where  the  easement  consists  in  benefits  resulting  from  the 
servient  owner  refraining  from  doing  certain  acts,  it  is  called 
a  negative  easement,  since  no  act  is  required  by  the  dominant 
owner  to  enjoy  it,  as  the  right  of  light  and  air.4 

Where  there  must  be  an  affirmative  act  on  the  part  of  the 
dominant  owner  in  order  to  enjoy  the  easement,  it  is  called  an 
affirmative  easement,  as  a  right  of  way. 

Easements,  then,  are  imposed  on  land  and  the  owner  of  the 
easement  has  an  interest  in  the  land.  In  this  respect  an  ease- 
ment differs  from  a  license. 

A  license  is  a  permission  to  do  some  acts  or  a  series  of  acts 
upon  the  land  of  the  licensor  without  any  permanent  interest 
in  it.5  It  is  founded  upon  a  personal  confidence  and  cannot  be 
assigned.6  Under  it  a  temporary  use  of  the  land  is  contem- 
plated, and  the  licensor  as  a  general  rule  may  revoke  the  license 

*Cadwalader  vs.  Bailey,  17  R.  I.,  495;  14  L.  R.  A.,  300. 
'Morrill  vs.  Mackman,  24  Mich.,  279. 
'Fisher  vs.  Fair,  34  S.  C.,  2O3. 

This  was  an  action  to  recover  damages  against,  defendant  for  the 
pollution  of  a  stream  running  past  plaintiff's  land.  The  defendants 
claimed  that  they  had  an  easement  to  discharge  the  matter  complained 
of,  by  virtue  of  a  writing  whereby  plaintiff  bound  himself  to  allow  the 
Warner  Iron  Co.,  from  whom  defendant  purchased  its  property,  to  pass 
muddy  waters  from  its  washers  and  to  accept  $500  per  year  in  full  for 
all  damages,  as  long  as  the  Iron  Company  "may  wish  to  run." 

It  was  held  that  the  writing  created  a  license  and  not  an  ease- 
ment, and  that  such  a  license  could  not  be  transferred  to  the  defend- 


384  EASEMENTS   AND   LICENSES. 

at  any  time.  Not  being  an  interest  in  land,  a  license  may  be 
granted  by  parol.7 

An  easement  on  the  contrary  does  not  exist  by  virtue  of 
any  personal  confidence;  but  is  a  permanent  and  fixed  interest 
in  the  land,  which  may  be  conveyed  with  the  dominant  estate 
by  its  owner  to  whomsoever  he  pleases. 

The  owner  of  the  servient  estate  cannot  at  his  pleasure 
revoke  the  right  to  enjoy  the  easement  any  more  than  he  can 
prevent  the  enjoyment  of  the  dominant  estate  itself. 

Third.  Easements  do  not  create  any  right  to  the  product 
of  the  property  on  which  they  are  imposed.  It  has  already 
been  pointed  out  that  an  easement  is  a  privilege  to  make  use  of 
or  get  a  benefit  from  another's  property.  This  right  or  privi- 
lege to  use  and  enjoy  is  different  in  its  nature  from  the  right 
to  have  the  material  product  of  another's  land.8 

For  instance,  when  I  exercise  my  right  to  drive  over  an- 
other's land,  I  do  not  thereby  acquire  any  material  property, 

ant  by  its  grantor,  and  was  not  a  defense  to  plaintiff's  claim.  This 
conclusion  was  based  on  a  construction  of  the  writing  that  it  was  not 
the  intention  of  the  parties  to  create  a  permanent  interest  in  the  laud. 

'Kitchens  vs.  Shaller.  32  Mich.,  496. 
Hill  vs.  Cutting,  113  Mass.,  107. 

Nunnelly  vs.  Southern  Iron  Co.,  94  Tenn.,  397;  28  L.  R.  A.,  421. 

"Pierce  vs.  Keator,  TO  N.  Y.,  419. 

One  Pierce  deeded  to  the  N.  Y.  &  O.  M.  Railroad  Company  a  cer- 
tain portion  of  his  farm.  The  deed  contained  the  following  reserva- 
tion: "Said  parties  of  first  part  also  to  have  the  privilege  of  mowing 
and  cultivating  the  surplus  ground  not  required  for  railroad  purposes." 
Complainant  contended  that  the  right  of  mowing  and  cultivating  the 
strip  was  an  easement  which  would  pass  to  Pierce's  grantee  without 
designation.  The  court  did  not  accept  this  conclusion.  It  pointed  out 
that  an  easement  was  an  incorporeal  right  which  attached  to  an  estate 
to  be  exercised  over  another  estate.  "The  right  reserved  in  the  Pierce 
deed  was  a  right  to  profit  of  lands  and  was  not,  therefore,  in  strict- 
ness, an  easement.  From  the  nature  of  the  right,  we  can  see  no  con- 
nection between  it  and  ownership  of  farm.  The  right  to  mow  ano! 
cultivate  this  strip  was  in  no  way  necessary  to  or  even  iiseful  to  the 
remainder  of  the  farm."  The  court  held  that  the  right  reserved  was  a 
right  to  profits  a  prendre  and  was  a  personal  privilege  that  belonged  to 
Pierce  as  an  individual  and  not  as  an  owner  of  the  farm,  and  that 
such  privilege  was  not  an  easement  and  would  not  pass  to  Pierce's 
grantee. 


EASKMKNTS  AND  LICENSES.  385 

but  if  I  exercise  a' right  I  may  have  to  go  on  another's  land 
and  take  a  portion  of  his  crop,  I  thereby  come  into  the  pos- 
session of  a  material  property.  The  right  of  way  enhances  the 
value  of  my  land,  the  right  to.  the  product  while  it  enriches  me, 
does  not  affect  or  appertain  to  my  land.  The  former  is  an 
easement,  the  latter  a  profit  a  prendre. 

A  PBOFIT  A  PRENDRE  MAY  BE  DEFINED  AS  A  RIGHT 
TO  THE  LAND  OF  ANOTHER  OR  ITS  PRODUCT. 

When  this  right  to  a  profit  a  prendre  belongs  to  the  owner 
of  a  neighboring  tenement,  it  is  sometimes  called  a  quasi  ease- 
ment.9 

Fourth.  There  must  be  two  distinct  tenements,  the  domi- 
nant to  which  the  right  belongs,  and  the  servient  upon  which 
the  obligation  rests. 

The  right  of  the  dominant  estate  is  called  an  easement;  the 
obligation  of  the  servient  estate  is  called  a  servitude.  We  have 
already  seen  that  easements  are  imposed  not  on  persons,  but 
on  land,  and  it  only  remains  to  be  noticed  that  this  imposition 
on  the  land  is  made  not  for  the  benefit  of  another  person,  but 
for  the  benefit  of  other  land. 

It  is  time  that  the  owner  of  the  property  for  whose  benefit 
the  easement  exists  has  the  right  to  enjoy  it,  but  it  is  only  by 
virtue  of  his  ownership  of,  what  is  termed  the  dominant  tene- 
ment, that  the  right  exists.11 

r'Grubb  vs.  Grubb,  74  Pa.  St.,  25. 
Ritger  vs.  Parker,  8  Cush.   (Mass.),  145. 
Owen  vs.  Field,  102  Mass.,  103. 

"FlHher   vs.   Fair,   34  8.  C.,  203;  14  L.  R.  A.,  333. 

This  was  an  action  to  enjoin  defendant  from  closing  up  an  alley. 
The  plaintiff  was  formerly  the  owner  of  a  lot  Number  three  appurten- 
ant to  the  alley  in  question.  In  this  grant  he  acquired  the  right  to  an 
easement  in  said  alley.  Afterwards  he  conveyed  all  his  interests  in 
lot  3  to  another  person,  saving  and  reserving  to  himself  said  right  of 


386  EASEMENTS   AND   LICENSES. 

For  instance,  where  A's  land  does  not  abut  on  any  high- 
way, and  he  has  the  right  of  ingress  and  egress  over  B's  land, 
here  the  easement,  while  it  is  used  by  A,  is  plainly  for  the 
benefit  of  the  land.  When  A  conveys  his  land  he  conveys  his 
right  to  the  enjoyment  of  the  easement,  and  the  purchaser 
acquires  the  right  to  use  it  by  virtue  of  his  ownership  of  the 
land  purchased.12 

THE  OWNER  OF  LAND  TO  WHICH  AN  EASEMENT  IS  AP- 
PURTENANT CANNOT  CONVEY  THE  EASEMENT  APART 
FROM  THE  LAND,  NOR  IN  A  CONVEYANCE  OF  SUCH  LAND 
CAN  HE  RESERVE  THE  EASEMENT  TO  HIMSELF.13 

We  may  sum  up  the  essentials  of  a  true  easement  in  the  fol- 
lowing statement: 

EASEMENTS  ARE  NOT  PERSONAL,  BUT  ARE  FIXED  PER- 
MANENT INTERESTS  IN  LAND;  THEY  ARE  IMPOSED  NOT  ON 
PERSONS  BUT  ON  CORPOREAL  PROPERTY;  THEY  ARE  IM- 
POSED NOT  FOR  THE  BENEFIT  OF  PERSONS  BUT  FOR  THE 
BENEFIT  OF  CORPOREAL  PROPERTY 

There  are  certain  other  rights  in  land  in  the  nature  of  ease- 
ments which,  while  they  receive  that  name,  are  not  true  ease- 
ments. They  differ  from  the  easements  which  we  have  been 
considering  in  that  they  are  not  appurtenant  to  an  estate. 

For  instance,  if  one  not  an  owner  of  a  neighboring  tenement 
or  of  any  tenement,  has  the  right  to  drive  over  my  land,  his 
right  to  do  so  is  personal  and  not  attached  to  a  dominant  tene- 
ment. This  personal  right  is. called  an  easement  in  gross;  the 

way.    Subsequently  plaintiff  acquired  lot  two,  which  was  not  appurten- 
ant to  the  alley. 

The  court  held  that  the  plaintiff  had  no  right  to  the  use  of  the 
alley  except  as  the  owner  of  lot  3,  and  could  not,  by  virtue  of  a  reser- 
vation, retain  the  right  of  way  to  be  used  in  connection  with  lot  two 
or  any  other  lot,  for  the  right  of  way  was  appurtenant  only  to  lot  three. 

12Reise  vs.  Enos,  76  Wis.,  634;  8  L.  R.  A.,  017. 
Stuyvesant  vs.  Woodruff.  21  N.  J.  L.,  133. 

"Cadwalader  vs.  Bailey,  17  R.  I.,  495;  14  L.  R.  A.,  300. 


EASEMENTS    AND   LICENSES.  387 

true  easement  whose  essentials  we  have  been  discussing  is 
called  an  easement  appendant  or  appurtenant.14 

The  difference  in  the  rights  of  the  owners  of  these  differ- 
ent easements  may  be  stated  as  follows: 

An  easement  in  gross  being  personal  cannot  be  transferred 
to  another.  Thus  it  was  held  that  the  grant  of  a  right  of  way 
in  gross  is  a  mere  personal  privilege  and  expires  with  the 
grantee,  notwithstanding  the  fact  that  the  instrument  creating 
it  conveys  it  to  the  grantee  and  his  heirs  and  assignees  for- 
ever.15 

An  appurtenant  easement  may  be  transferred  with  the  prop- 
erty to  which  it  is  appurtenant,  and  will  pass  as  part  of  it  with- 
out the  use  of  the  word  "appurtenances."16  In  some  States, 
however,  it  has  been  held  that  an  easement  in  gross  is  assign- 
able and  is  inheritable.17 

HOW  CREATED. 

EASEMENTS  ABE  INTEBESTS  IN  LAND  AND  CANNOT  BE 
CBEATED  BY  PABOL.18 

They  must  be  created  by  a  grant  or  by  prescription  which 
presupposes  a  grant.  AVhen  created  by  grant,  they  may  arise 
from  an  express  grant  or  an  express  reservation,  which  may 
be  in  the  same  deed  or  by  a  separate  deed.19  For  instance, 
where  one  grants  a  portion  of  his  land  to  a  railroad  company 
to  be  used  as  roadbed  and  reserves  a  right  of  way  across  the 

14An  easement  will  not  be  construed  to  be  personal  where  it  can 
fairly  be  construed  to  be  appurtenant  to  land. 

Reise  vs.  Enos,  76  Wis.,  634;  8  L.  R.  A.,  617. 
"Fisher  vs.  Fair,  34  8.  C..  203;  14  L.  R.  A.,  333. 
"Stuyvesant  vs.  Woodruff,  21  N.  J.  L.,  133. 

Manderbach  vs.  Bethany  Orphan  Home,  109  Ga.,  231. 
"Goodrich  vs.  Burbank.  12  Allen  (Mass.).  459. 

Poull  vs.  Mockley,  33  Wis.,  482. 

New  York  v/5.  Low.  125  N.  Y.,  380. 
"Taylor  vs.  Millard,  118  N.  Y.,  244;  6  L.  R.  A..  607. 
19Ashcroft  vs.  E.  R.  Co..  126  Ma-ss.,  190. 


388  EASEMENTS    AND    LICENSES. 

portion  granted,  a  permanent  easement  is  created  by  reserva- 
tion.20 So  an  easement,  by  express  grant,  arises  where  the 
owner  of  one  parcel  of  land  expressly  grants  to  an  adjoining 
owner  the  right  to  a  permanent  driveway  over  it. 

The  above  are  instances  of  an  express  reservation  and  of 
an  express  grant,  but  in  some  instances  an  easement  may  arise 
although  not  expressly  mentioned  in  a  deed.  It  may  be  im- 
pliedly  included  in  the  property  conveyed  or  impliedly  reserved 
from  it. 

IMPLIED  GRANT. 

If  the  owner  of  a  close  entirely  surrounded  by  his  own 
land,  conveys  it  to  another,  he  also  conveys  a  right  of  way 
over  his  land  to  the  close  by  implication. 

So,  if  the  owner  of  the  close  conveys  the  laud  surrounding 
the  close,  he  impliedly  reserves  to  himself  the  right  of  way 
across  the  portion  sold,  for  the  benefit  of  the  close. 

WHERE  LAND  IS  GRANTED  THERE  WILL  PASS  WITH  IT, 
WITHOUT  SPECIAL  DESIGNATION,  ALL  EASEMENTS  WHICH 
ARE  REASONABLY  NECESSARY  TO  THE  FAIR  ENJOYMENT 
OF  THE  LAND  GRANTED;  AND  WHERE,  BEFORE  THE  SEVER- 
ANCE OF  THE  TITLE,  A  SERVITUDE  HAD  BEEN  IMPOSED  ON 
ONE  PART  OF  THE  LAND  FOR  THE  BENEFIT  OF  ANOTHER 
PART,  AND  SUCH  BENEFIT  IS  OF  A  PERMANENT  CHARAC- 
TER, OPEN  AND  APPARENT  AT  THE  TIME  OF  THE  TRANS- 
FER, A  GRANT  OF  THE  PORTION  BENEFITED  WILL  CONVEY 
WITH  IT  THE  RIGHT  TO  SUCH  BENEFIT.21 

^"Chappell  vs.  New  York  R.  Co.,  62  Conn.,  195;  17  L.  R.  A..  420. 

Claflin  vs.  Boston  &  A.  R.  Co.,  157  Mass.,  489;  20  L.  R.  A.,  038. 
-'Bowling  vs.  Burton,  101  N.  C.,  176;  2  L.  R.  A.,  285. 

Cannon  vs.  Boyd,  73  Pa.  St.,  179. 

Mere  convenience  is  not  sufficient  to  convey  an  easement  by  im- 
plication, but  the  right  must  be  of  value  to  the  estate  granted.  Paine 
vs.  Chandler.  134  N.  Y..  305;  19  L.  R.  A.,  99. 

In  a  few  States  only  those  easements  which  are  absolutely  neces- 
sary to  the  enjoyment  of  the  property  granted  will  pass  by  implied 
grant. 

Robinson  vs.  Clapp,  65  Conn.,  365;  29  L.  R.  A.,  582,  and  cases  cited. 


EASEMENTS   AND   LICENSES.  389 

It  will  be  seen  from  this  statement  that  not  only  those  ease- 
ments which  are  absolutely  necessary  to  the  enjoyment  of  the 
premises  granted,  but  other  easements  which  are  reasonably 
beneficial  to  it  and  which  are  apparent  and  open  at  the  time 
of  the  sale,  impliedly  pass  on  a  conveyance  of  the  property.22 

IMPLIED  RESERVATIONS. 

As  to  implied  reservations  the  courts  do  not  agree  in  all 
respects. 

ALL  THE  COURTS  AGREE  THAT  WHERE  PART  OF  A  PIECE 
OF  LAND  IS  GRANTED,  AND  IT  IS  ACTUALLY  NECESSARY  TO 
THE  ENJOYMENT  OF  THE  PIECE  RETAINED  THAT  THERE 
SHOULD  BE  AN  EASEMENT  IN  THE  PIECE  GRANTED,  AN 
EASEMENT  WILL  ARISE  BY  IMPLICATION.23 

That  is,  where  the  necessity  for  the  existence  of  the  ease- 
ment is  of  such  a  strict  nature  that  it  is  reasonable  to  suppose 
that  it  was  the  intention  of  the  parties  that  the  easement 
should  exist  in  fhe  portion  sold,  the  courts  hold  that  an  ease- 
ment arises  by  implied  reservation.24 

The  easement  of  light  and  air  seems  to  be  excepted  from  the  above 
principle  and  it  will  not  pass  by  implication. 

22Paine  vs.  Chandler,  134  X.  Y.,  385;    19  L,.   R.  A.,  99. 

Plaintiff  owned  two  contiguous  farms,  which  he  operated  as  one 
farm.     He   conveyed   both   farms  to  defendant,   and  subsequently  re- 
purchased one  from  him.     At  the  time  of  re-purchase  and  for  a  long 
time  prior  thereto,  a  pipe  conveyed  water  from  defendant's  farm  to 
plaintiff's  farm,  sufficient  to  supply  plaintiff  with  water  for  domestic 
and  agricultural  purposes.     The  deed  to  plaintiff  made  no  mention  of 
the  spring,  and  defendant  diverted  the  water,  cutting  off  plaintiff's  sup- 
ply from  the  pipe.    It  was  held  that  while  the  supply  of  water  from  the 
pipe  was  not  absolutely  necessary  to  plaintiff's  use  of  the  farm,  yet  it 
was  essential  to  its  full  enjoyment,  and  the  right  to  the  enjoyment 
of  the  spring  passed  by  implication  under  the  deed  of  the  farm. 
23Logan  vs.  Stogdale,  123  Ind.,  372;  8  L.  R.  A.,  58. 
=4Burns  vs.  G-allagher,  62  Md.,  462. 
Buss  vs.  Dyer,  125  Mass.,  287. 
Mitchell  vs.  Seipel,  53  Ind.,  251. 
Cihak  vs.  Klekr   117  111.,  642. 
Paine  vs.  Chandler,  134  N.  Y.,  385. 


390  EASEMENTS   AND   LICENSES. 

Most  of  the  courts  refuse  to  extend  the  doctrine  of  implied 
reservations  beyond  this  actual  necessity.25 

These  decisions  are  based  on  the  reasoning  that  a  grant  is 
most  strongly  construed  against  the  grantor,  and  that  any- 
thing in  derogation  of  a  full  grant  should  be  in  express  terms 
and  not  by  an  implied  reservation.26  In  other  words  most  of 
the  courts  make  a  distinction  between  implied  grants  ana 
implied  reservation  of  an  easement  and  no  easement  will  he 
held  to  be  reserved  by  implication  unless  it  is  necessary  to  the 
enjoyment  of  the  property  not  granted. 

Other  courts  have  extended  this  doctrine  of  implied  reser 
vations  of  easements,  holding  that  the  purchaser  takes  tm- 
property  with  all  the  burdens  which  appear  at  the  time  of  the 
sale,  and  that  the  grantor  has  a  right  by  an  implied  reserva- 
tion to  those  uses  of  the  estate  conveyed  which  were  perma- 
nent and  apparent  at  the  time  of  the  sale. 

These  cases  are  based  upon  this  reasoning,  that  the  parties 
are  presumed  to  contract  in  reference  to  the  property  in  the 
condition  in  which  they  find  it  at  the  time  of  the  sale,  and 
that  if  the  burdens  on  it  are  open  and  visible,  the  purchaser- 
takes  the  property  subject  to  it,  the  same  as  he  takes  the  open 
• 

l\  iiin.sl«->    vs.    GonlddborouR'h    I  :ii><!     Improvement    Co.,     86     Me., 
279;   25  L,.   R.   A.,  5O2. 

This  is  an  action  for  trespass.  Defendant  owned  a  neck  of  land 
surrounded  on  three  sides  by  water,  and  plaintiff's  land  adjoined  it 
on  the  other  side.  Plaintiff's  and  defendant's  land  were  at  one  time 
owned  by  the  same  person,  and  defendant  claimed  that  it  had  a  right 
of  way  by  necessity  over  plaintiff's  premises.  The  court  held  that  the 
defendant  had  the  free  use  of  the  water  in  going  to  and  from  its  land 
and  that  while  it  might  be  more  convenient  to  pass  over  defendant's 
land  than  to  be  subjected  to  the  inconvenience  of  using  the  water,  yet 
this  inconvenience  is  not  such  as  the  law  required  to  constitute  a  legal 
necessity  for  the  way  claimed. 

See  also:     Shoemaker  vs.  Shoemaker,  11  Abb.  (N.  C.),  80. 
'"Mitchell  vs.  Seipel,  53  Ind.,  251. 

Preble  vs.  Reed,  17  Me.,  169. 


EASEMENTS   AND   LICENSES.  391 

benefits  attaching  to  it,  and  that  the  parties  have  no  right  to 
alter  the  condition  of  the  property  openly  existing  at  the 
time  of  the  sale,  and  thereby  change  materially  the  value  of 
the  respective  parts.27 

The  first  ruling  is  supported  by  the  weight  of  authority. 
What  easements  are  reasonably  necessary  for  the  enjoyment  of 
the  grant  must  depend  upon  the  circumstances  of  each  par- 
ticular case.  It  may  be  stated  that  easements  which  are  appa- 
rent and  continuous,  i.  e.,  easements  of  which  the  use  may  be 
had  without  the  intervention  of  man,  as  a  drain  or  lateral 
support,  pass  by  implication.  Whether  discontinuous  ease- 
ments being  such  that  they  may  be  used  only  by  the  inter- 
vention of  man,  such  as  a  highway,  a  right  to  draw  water,  are 
granted  or  reserved  by  implication,  must  depend  upon  the 
circumstances  of  each  case  and  the  application  of  the  rules 
already  stated. 

EASEMENT  ARISING  FROM  COVENANTS. 

It  is  sometimes  said  that  an  easement  is  implied  from  the 
covenants  in  a  grant  which  restrict  the  use  of  the  land  granted 
for  the  benefit  of  adjoining  property. 

Thus,  where  a  covenant  in  a  deed  provides  that  no  buildings 
shall  be  erected  within  a  certain  distance  from  the  street,  it  has 
been  held  that  the  right  of  an  adjoining  owner  is  in  the  nature 
of  an  easement,  and  that  he  may  prevent  the  erection  of  a 
building  violating  the  terms  of  the  grant.28 
BY  PRESCRIPTION. 

At  the  common  law,  the  possession  and  enjoyment  of  an 
easement  from  a  time  "whereof  the  memory  of  man  runneth 


"Lampman  vs.  Milks,  21  N.  Y..  505. 
Galloway  vs.  Bonestele,  65  Wis.,  79. 
Sauderlin  vs.  Baxter,  70  Va.,  299. 
-"Bagnall  vs.  Daves,  140  Mass.,  76. 
Pinjrree  vs.  McDuffie,  5G  N.  H.,  300. 
Rose  vs.  Hnwley.  118  N.  Y.,  502. 


392  EASEMENTS   AND    LICENSES. 

not  to  the  contrary"  gave  rise  to  a  conclusive  presumption  that 
the  right  was  originally  founded  on  a  grant. 

This  common  law  doctrine  has  been  superseded  by  the 
statute  of  limitations.  A  title  to  an  easement  is  now  said  to 
be  by  prescription  where  there  has  been  an  open,  continued, 
exclusive  and  adverse  enjoyment  of  the  right  for  a  period  pre- 
scribed by  the  statute  of  limitations,  necessary  to  constitute 
a  title  to  land  by  adverse  possession.  There  is  a  difference  of 
opinion  as  to  the  effect  of  this  adverse  possession  for  the  re- 
quired period. 

In  some  States  the  courts  hold  that  at  the  expiration  of 
the  period  required  by  the  statute  a  presumption  arises  that 
the  person  possessing  and  enjoying  the  easement  had  a  grant 
and  title  to  it,  but  that  this  presumption  might  be  rebutted.-0 

Other  courts  hold  that  at  the  expiration  of  the  time  fixed 
by  the  statute  of  limitations,  the  presumption  of  a  grant  is 
conclusive  and  may  not  be  rebutted.30 

To  constitute  a  title  by  prescription  there  must  be: 

1.  An  open,  uninterrupted,  continuous  adverse  and  exclu- 
sive enjoyment  of  the  easement  for  a  period  required  by  the 
statute  of  limitations.31  In  other  words,  the  enjoyment  must  be 
so  open  and  notorious  that  the  owner  of  the  servient  tenement 
will  have  actual  or  presumed  knowledge  of  it. 

The  enjoyment  must  be  continuous,  for  if  the  claimant  aban- 
dons his  right  for  a  period  he  loses  any  prescriptive  rights 
he  may  have  up  to  that  time.  It  is  not  necessary  that  the 
enjoyment  of  the  easement  should  be  continuous  by  the 
same  person.  It  is  sufficient  if  it  be  enjoyed  continuously 

"Tinkham  vs.  Jackson,  20  Pa.  St.,  331. 

Cornett  vs.  Puddy,  80  Va.,  503. 

Hoag  vs.  Place,  93  Mich.,  450. 
"Garrett  vs.  Jackson,  20  Pa.  St.,  331. 
"Curtis  vs.  La  Grande  Hydr.  Water  Co.,  20  Or.,  34. 


KA.SKMK.NTS    AND    LICKNSKS.  393 

by  persons  in  privity  with  each,  other,  such  as  vendor  and  ven- 
dee.32 The  enjoyment  of  the  easement  must  be  exclusive  of 
others  who  have  no  title.33  If  the  easement  is  enjoyed  by  the 
public,  no  presumptive  right  arises  for  the  benefit  of  a  private 
person  as  such. 

2.  The  enjoyment  of  the  easement  must  be  adverse  to  the 
owner  of  the  land;  in  other  words,  it  must  be  hostile  and 
under  a  claim  of  right.     The  user,  for  instance,  if  under  a 
license  from  the  owner,  can  not,  though  continued  for  any 
period,  ripen  into  a  title  by  prescription.3* 

3.  The  running  of  the  statute  must  be  for  the  required 
period  after  the  time  the  owner  can  legally  enforce  his  rights 
to  the  land.    The  statute  does  not  commence  to  run  against 
an  infant  or  one  under  other  legal  disability  until  the  disability 
is  removed.35 

In  some  States  the  courts  hold  that  if  the  disability  arises 
after  the  enjoyment  of  the  easement  has  commenced  and  after 
the  statute  has  once  begun  to  run,  it  will  not  prevent  the  ac- 
quisition of  a  title  by  prescription.36 

HOW  LOST  OR  EXTINGUISHED. 

An  easement  may  be  lost  or  extinguished  in  any  of  the  fol- 
lowing ways: 

1.     BY  A  MERGER  OF  THE  TWO  ESTATES. 

When  the  same  person  becomes  the  owner  of  the  servient 
and  dominant  estates,  the  easement  ceases,  since  the  owner 

•'-Melvin  vs.  Whiting.  13  Pick  (Mass.).  184. 

"Pearsall  vs.  Post,  20  Wend.  (N.  Y.),  111. 
"Curtis  vs.  La  Grande  Hydraulic  Co.,  20  Or.,  34;  10  L.  R.  A..  484. 

Eckerson  vs.  Crippen,  38  Hun..  419. 

Morgan  vs.  Meuth,  60  Mfch.,  238. 

Burbank  vs.  Fay,  65  N.  Y.,  57. 

The  essentials  of  adverse  possession  are  stated  hereafter. 
"Watkin  vs.  Peck,  13  N.  EL,  360. 
J"Ballard  vs.  Demmon,  156  Mass.,  449. 

Tracy  vs.  Atherton.  36  Vt.  503. 


394  EASEMENTS   AND   LICENSES. 

having  the  absolute  control  of  all  the  property,  it  cannot  be 
said  that  an  easement  exists  in  his  favor  in  any  part  of  it.37 

To  have  the  effect  of  merging  the  estates,  the  owner's  title 
in  each  portion  must  be  co-extensive  and  co-equal.  For  in- 
stance, if  the  owner  should  own  only  a  fractional  part  of  one 
estate  and  all  of  the  other,  the  easement  would  not  be  extin- 
guished.38 And  so  if  the  dominant  estate  when  conveyed  to 
the  owner  of  the  servient  estate  is  limited  in  its  duration,  the 
easement  would  only  be  extinguished  during  the  time  the  ser- 
vient owner  had  the  right  to  the  two  estates,  and  it  would 
revive  after  the  right  ceased.39 

2.  BY  RELEASE. 

A -release  by  the  dominant  owner  in  writing  will  extinguish 
the  easement.40 

A  parol  release  ordinarily  is  not  sufficient,  but  if  the  parol 
release  becomes  executed  by  the  performance  of  acts  in  reli- 
ance on  it  by  the  servient  owner,  it  is  a  valid  release. 

3.  BY  ADVERSE  USER. 

An  easement  may  be  lost  by  an  adverse  user  by  the  servient 
owner  for  the  period  required  by  the  statute  of  limitations.41 

In  some  States  a  distinction  is  made  between  easements 
acquired  by  prescription  and  those  acquired  by  grant. 

In  such  States  it  has  been  held  that  the  former  may  be 
lost  by  mere  non-user  for  the  required  period,  without  any 
adverse  claim  on  the  part  of  the  servient  owner,  but  that  an 

"Morgan  vs.  Meuth,  60  Mich.,  238. 
^Atlanta  Mills  vs.  Mason,  120  Mass.,  244. 
'"Tyler  vs.  Hammond.  11  Pick  (Mass.),  193. 

Grant  vs.  Chase,  17  Mass.,  443. 
"'Hamilton  vs.  Farrar,  128  Mass.,  492. 
"Snell  vs.  Levitt,  110  X.  Y..  595;  1  L.  R.  A.,  414. 


EASEMENTS   AND   LICENSES.  395 

easement  acquired  by  grant  can  only  be  lost  by  an  actual  ad- 
verse user.42 

This  distinction  has  been  questioned  by  many  courts,  and 
easements  created  by  deed  and  those  acquired  by  prescription 
are  in  some  States  placed  on  the  same  footing.43 

While  it  is  generally  true  that  a  non-user  is  not  of  itself 
sufficient  to  extinguish  the  easement,44  yet  when  such  non-user 
is  accompanied  by  acts  on  the  part  of  the  dominant  owner 
which  manifest  an  intention  to  abandon,  and  which  de- 
stroy the  object  for  which  the  easement  was  created  or  the 
means  of  its  enjoyment,  the  easement  will  be  regarded  as 
abandoned.45 

4.     BY    ESTOPPEL. 

Where  the  owner  of  the  dominant  estate  grants  permission 
to  the  servient  owner  to  perform  acts  which  permanently  de- 
stroy the  easement,  and  the  servient  owner  relying  on  such 
permission  erects  buildings  or  does  other  acts  which  so  change 
his  circumstances  that  a  revival  of  the  easement  would  work 
him  an  injury,  the  dominant  owner  will  be  estopped  from  re- 
viving the  easement. 

4-In  the  case  of  Day  vs.  Walden,  46  Mich.,  575,  Justice  Cooley  states 
the  reason  of  the  rule  as  to  easements  created  by  grant,  as  follows: 
"The  grant  was  perpetual  and  without  conditions,  and  therefore  the 
privilege  granted  would  continue  indefinitely  whether  the  grantee  did 
or  did  not  avail  himself  of  it.  An  accepted  grant  cannot  be  waived  or 
abandoned,  and  the  neglect  of  the  grantee  to  enjoy  the  easement  would 
be  no  more  significant  in  its  bearing  upon  his  right  than  the  neglect 
to  enjoy  the  freehold  to  which  the  easement  was  appurtenant." 

43Veghte  vs.  Raritau  Co..  19  N.  .T.  Eq.,  142. 

"Welsh  vs.  Taylor,  134  N.  Y..  450;  18  L.  R.  A.,  535. 

Dill  vs.  Camdeu  Bd.  of  Education.  47  N.  J.  Eq.,  421;  10  L.  R.  A., 
276. 

4"'Jones  vs.  Van  Boeliove,  1O3  Mich.,  98. 

A  cement  company  owned  a  right  of  way  from  a  marl  bed  to  its 
factory.  After  operating  for  a  while  the  company  failed  and  its  fac- 
tory was  torn  down  and  the  fences  enclosing  the  right  of  way  were  re- 
moved. 

The  court  held  that  the  non-user  of  the  easement  with  so  clear 
an  intent  to  abandon  amounted  to  an  absolute  abandonment  of  the 
easement. 


396  EASEMENTS   AND   LICKXSKS. 

Thus,  where  one  having  an  easement  to  the  light  and  air 
over  another's  land  permits  and  consents  to  the  erection  of  a 
building  which  destroys  his  easement,  he  cannot  afterwards 
maintain  a  claim  to  his  easement. 

5.     BY  MISUSER. 

Where  the  owner  of  the  easement  so  increases  his  use  of 
it  that  it  loses  its  original  character  and  cannot  be  restored, 
the  easement  is  extinguished.  If  the  original  easement  can 
be  separated  and  restored  it  is  not  extinguished.47 

0.     BY  EMINENT  DOMAIN. 

Where  the  easement  is  inconsistent  with  the  use  for  which 
the  servient  estate  is  taken,  it  is  condemned  with  the  land. 
Compensation  must,  under  such  circumstances,  be  made  to  the 
owner  of  the  easement.48 

7.  WHEN  THE  PURPOSE  FOR  WHICH  THE  EASEMENT  WAS 
CREATED  CEASES,  THE  EASEMENT  CEASES. 

Thus,  where  an  easement  arose  by  necessity  in  a  stairway 
for  egress  and  ingress  to  a  certain  part  of  a  building,  it  was 
held  that  on  the  destruction  of  the  building  the  easement 
ceased.49 

RIGHTS  AND  LIABILITIES  OF  THE  OWNERS   OF   THE  TENE- 
MENTS. 

THE  DOMINANT  OWNER  IS  CONFINED  TO  THAT  USE  OF 
THE  SERVIENT  TENEMENT  WHICH  IS  SUFFICIENT  AND 
NECESSARY  TO  CARRY  OUT  THE  PURPOSE  FOR  WHICH  THE 
EASEMENT  WAS  CREATED.00 

4TWhittier  vs.  Cocheco  Mfg.  Co.,  9  N.  H.,  454. 
^Webster  vs.  Lowell,  142  Mass..  324. 
"Hahn  vs.  Baker  Lodge, 'etc.,  21  Or.,  30;  13  L.  R.  A.,  158. 
""Herman  vs.  Roberts,  119  N.  Y.,  37;  7  L.  R.  A.,  226. 

Shaughnessey  vs.  Leary,  161  Mass.,  108. 

Noyes  vs.  Hemphill,  58  N.  H..  536. 


KASKMKNTS    AND    LICENSES.  397 

THE  SERVIENT  OWNER  MAY  MAKE  ANY  USE  OF  HIS 
LAND  WHICH  DOES  NOT  INTERFERE  WITH  THE  REASON- 
ABLE ENJOYMENT  OF  THE  EASEMENT/1 

Iii  the  absence  of  an  agreement,  the  dominant  owner  must 
make  repairs,  necessary  to  the  enjoyment  of  the  easement,  and 
for  that  purpose  he  may  go  upon  the  servient  estate  to  make 
reasonable  repairs  and  to  remove  obstructions.52 

The  owner  of  the  dominant  estate  has  three  remedies  for 
the  obstruction  of  the  easement. 

1.  If  a  reasonable  necessity  exists,  lie  may  go  upon  the 
servient  estate  and  abate  the  nuisance. 

-.  He  may  commence  a  proceeding  in  equity  to  restrain 
any  further  injury  or  encroachment  on  the  easement. 

.'{.  He  may  have  an  action  at  law  for  the  damage  to  the 
easement. 

The  most  important  easements  are,  in  reference  to  air  and 
light,  lateral  and  subjacent  support,  party  walls  and  rights 
of  way. 

LIGHT  AND  AIR. 

AN  EASEMENT  IN  LIGHT  AND  AIR  CONSISTS  IN  THE 
RIGHT  TO  ENJOY  THE  LIGHT  AND  AIR  COMING  FROM  AN- 
OTHER'S LAND,  FREE  FROM  ANY  ARTIFICIAL  OBSTRUCTION. 

MOlcott  vs.  Thompson,  59  N.  H.,  154. 
Hermann  vs.  Roberts,  119  N.  Y.,  37! 
Moffat  vs.  Lytle,  165  Pa.  St.,  173. 

Holllns   vs.  Demoreat,  129  N.  Y.,    «7(>s   15   I,.   R.   A.,  487. 

Suit  brought  to  enjoin  encroachment  on  a  private  way  granted  in 
3837. 

The  defendant  was  the  owner  of  property  subject  to  a  right  of 
way  fifteen  feet  wide  to  be  used  for  certain  purposes  mentioned  in  the 
grant. 

Defendant's  lessee  erected  fourteen  feet  over  said  way  a  building, 
supported  on  two  iron  posts,  set  on  the  easterly  edge  of  the  way,  but 
leaving  a  clear  space  for  the  way  exceeding  fifteen  feet  in  width.  The 
court  refused  to  issue  an  injunction  and  held  that  the  defendant  could 
use  the  property  in  any  way  not  inconsistent  with  the  easement,  and 
that  the  building  did  not  interfere  with  the  use  of  the  way  for  the 
purposes  mentioned  in  grant. 

"Wheeler  vs.  Wilder.  61  N.  H..  2. 

Joyce  vs.  Conlin.  72  Wis.,  607. 


398  EASEMENTS    AXI)    LICENSES. 

In  England  this  right  could  be  acquired  by  prescription. 
At  the  common  law,  the  uninterrupted  enjoyment  of  the  light 
and  air  coming  over  another's  property  to  the  windows  of  an 
adjoining  owner,  for  a  long  continued  period,  raised  the  pre 
sumption  of  a  grant;  and  the  right  "ripened  into  the  character 
of  an  ancient  light  which  could  not  be  interfered  with." 

Subsequently,  the  time  of  enjoyment  of  the  light  and  air,  in 
order  to  give  rise  to  the  easement,  was  fixed  at  twenty  years, 
after  which  time  the  right  became  absolute. 

As  a  general  rule,  this  doctrine  does  not  obtain  in  this 
country.  Most  of  the  courts  regard  it  as  inapplicable  to  the 
conditions  existing  in  the  United  States,  where  the  rapid 
growth  of  the  country  would  be  retarded  by  such  a  holding.54 

In  most  of  the  States,  an  easement  in  light  and  air  can  only 
be  created  by  grant/'5  In  some  States  the  courts  have  held 
that  there  may  be  an  implied  grant  or  an  implied 'reservation ; 
and  that  where  a  grantor  conveys  a  portion  of  his  land  to 
another,  and  it  is  absolutely  necessary  to  the  enjoyment  of  the 
piece  granted  that  the  air  and  light  should  be  allowed  to 
come  freely  over  the  piece  retained,  an  easement  will  arise  by 
implication.56 

Other  courts  hold  that  easements  in  light  and  air  cannot 
arise  by  implication.57 

MParker  vs.  Foote,  19  Wend  (N.  Y.).  309. 

Keats  vs.  Hugo,  115  Mass.,  204 

Contra  Gert>er  vs.  Grabel,  16  111.,  217. 

Taylor  vs.  Boulware,  35  La.  Ann.,  469. 
"Keating  vs.  Springer,  146  111.,  481;  22  L.  R.  A..  r>44. 
"Turner  vs.  Thompson,  58  Ga.,  268. 
67See  Hagerty  vs.  Lee,  54  N.  J.  (h),  580. 

Robinson  vs.  Clapp.  65  Conn..  365;  29  L.  R.  A..  582. 

Keiper  vs.  Klein.  51  Ind..  316. 

Mullen  vs.  Strieker,  19  Ohio  St.,  135. 

'Kennedy   vs.    It  urn  up     12O    Cal.,   48S;  4O  L,.  R.  A.,  476. 

This  was  an  action  to  restrain  defendant  from  cutting  off  the 
light  and  air  from  plaintiff's  window.  In  1881  one  Haubury  owned 
certain  lots  in  San  Diego  having  a  frontage  of  145  feet;  on  the  north 
50  feet  of  the  tract  he  built  a  lodging  house.  The  windows  of  the 
upper  stories  opened  out  upon  the  vacant  lots,  admitting  light  and  air. 


EASKMKXTS    AND    LK'KNSKS.  399 

The  cases  in  which  an  easement  in  light  and  air  are  created 
by  grant  are  comparatively  few.  When  there  is  any  express 
grant  of  this  easement  the  courts  will  enforce  the  agreement 
and  will  restrain  any  interference  with  the  right  granted.58 

In  some  States  the  courts  hold  that  while  an  adjoining 
owner  has  a  legal  right  to  make  erections  on  his  own  land, 
yet  he  has  no  legal  right  to  make  erections  not  for  any  benefit 
to  himself,  but  for  the  malicious  purpose  of  damaging  his 
neighbor  by  shutting  off  his  light  and  air.  "The  right  to 
breathe  air  and  enjoy  sunshine  is  a  natural  one;  and  no  man 
can  pollute  the  atmosphere,  or  shut  out  the  light  of  heaven  for 
no  better  reason  than  that  the  situation  of  his  property  is  such 
that  he  is  given  the  opportunity  of  so  doing,  and  wishes  to 
gratify  his  spite  and  malice  toward  his  neighbor."39  Other 
courts  hold  that  where  the  owner  has  a  legal  right  to  make 
the  erection  complained  of,  the  courts  will  not  inquire  into  his 
motives,  so  long  as  he  does  not  violate  the  rights  of  others.80 

Hanbury  used   the   building  in  this  condition  for  about  nine  years, 
when  he  conveyed  it  to  the  plaintiff. 

The  vacant  lots  were  subsequently  conveyed  to  the  defendant. 
Defendant  in  May,  1896,  began  the  erection  of  a  three-story  building 
on  his  lots,  close  to  and  against  plaintiff's  building,  so  as  to  close  up 
and  darken  said  windows  and  shut  off  all  light  and  air.  Plaintiff  then 
began  this  proceeding,  alleging  that  the  proposed  building  would  de- 
stroy one-third  of  the  value  of  her  property  and  render  the  south  part 
of  her  building  uninhabitable.  The  court  held  that  an  easement  would 
not  arise  by  implication.  "To  imply  the  grant  of  such  a  right  in  either 
case  without  express  words,  would  greatly  embarrass  the  improve- 
ment of  estates,  and,  by  reason  of  the  very  indefinite  character  of  the 
right  inserted,  promote  litigation.  The  simplest  rule  and  that  best 
suited  to  a  country  like  ours,  in  which  changes  are  taking  place  in  the 
ownership  and  use  of  land,  is  that  no  right  of  this  character  can  be 
acquired  without  the  grant  of  an  interest  in  or  covenant  relating  to  the 
lands  over  which  the  right  is  claimed. 

Judgment  of  lower  court  for  defendant  affirmed. 
"Low  vs.  Streeter,  66  N.  H.,  36;  9  L.  R.  A.,  271. 
"Burke  vs.  Smith.  <59  Mich..  380-380. 

Flaherty  vs.  Moran,  81  Mich.,  52. 
'"Mahan  vs.  Brown.  13  Wend  (N.  Y.»,  2G1. 

Guest  vs.  Reynolds.  68  111.,  478. 

Phelps  vs.  Nowlen,  72  N.  Y.,  39. 

Walker  vs.  Cronin.  107  Mass..  555. 


400  EASEMENTS    AND    LICENSES. 

LATERAL  SUPPORT. 

THE  BIGHT  OF  LATERAL  SUPPORT  IS  THE  RIGHT  TO 
HAVE  ONE'S  LAND  SUPPORTED  BY  ADJOINING  LAND. 

The  right  of  lateral  support  of  land  in  its  natural  state  is 
not  an  easement,  but  is  a  natural  right  incidental  to  the 
ownership  of  the  land.  The  owner  of  the  adjoining  soil 
has  no  more  right  to  remove  the  support  to  his  neighbor's 
land,  in  its  natural  state,  than  he  has  to  remove  his  neigh- 
bor's land;  for  if  he  commits  either  of  these  acts  ho 
invades  his  neighbor's  rights  of  property.  The  removal  of  the 
support  of  land  in  its  natural  state  is  not  and  cannot  be  justi- 
fied by  a  claim  by  the  adjoining  owner  that  in  excavating  his 
property  he  acted  in  a  careful  and  prudent  manner;  for  such 
claims  cannot  justify  the  violation  of  rights  of  property.01 

If  the  lateral  pressure  on  the  adjoining  land  is  iiicn-as<-d 
by  the  erection  of  buildings,  a  different  question  is  presented. 
Under  such  circumstances,  it  may  be  said:  First,  the  'iiihi  to 
the  support  of  the  natural  weight  of  the  land,  i.  e.,  without; 
buildings,  continues.  Second,  the  right  does  not  extend  to 
the  support  of  artificial  burdens.  In  other  words,  the  right  to 
have  extra  and  artificial  burdens  on  the  land  supported  by 
adjoining  land,  is  not  a  natural  right.62 

Third,  the  right  to  have  the  extra  burden  supported  may  be 
acquired;  and  when  acquired  is  an  easement  appurtenant  !o 
the  property  on  which  the  building  is  situated.63  * 

These  propositions  require  no  explanation.  The  first  propo- 
sition is  not  supported  in  all  cases  by  all  courts,64  but  the 


"'Foley  vs.  Wyeth,  2  Allen   (Mass.),  131. 

Farrand  vs.  Marshall,  35  N.  Y.,  520. 
"•Moellering  vs.  Evans,  121  Ind.,  195. 
"Barry  vs.  Edlavitch,  84  Md.,  95;  33  L.  R.  A.,  294. 

Stevenson  vs.  Wallace,  27  Gratt  (Va.),  77. 
'"Gilmore  vs.  Driscoll,  122  Mass.,  199. 


EASEMENTS   AND   LICENSES.  401 

weight  of  authority  and  better  reasoning  support  it.63  It  was 
formerly  held  in  England  and  in  a  few  States  in  this  country^ 
that  the  easement  requiring  the  support  of  buildings  might 
be  acquired  by  prescription;  but  it  is  now  the  general,  if  not 
the  universal  rule,  that  it  cannot  be  acquired  by  prescription.66 

It  is  difficult  to  see  how  this  easement  could  arise  by  pre- 
scription, for  there  can  be  no  possession  of  anything  belonging 
to  another,  "no  encroachment  on  another's  right,  no  adverse 
user,  in  fact,  nothing  done  whatever  against  which  another 
could  complain  or  for  which  an  action  could  be  brought;  and 
no  remedy  existing  whereby  to  prevent  such  a  presumption 
from  arising."67 

A  further  reason  is  given  that  such  a  doctrine  could  not  be 
applied  to  the  conditions  of  a  country  which  is  growing  so 
rapidly  as  the  United  States  without  working  injurious  results. 

The  easement  of  lateral  support  in  this  country  can  only 
arise  from  an  express  or  implied  grant. 

The  following  is  an  instance  of  an  implied  grant:  Where 
the  owner  of  a  building  conveys  it  and  retains  land  adjoining 
it  which  is  necessary  to  the  support  of  the  building  sold,  it  was 
held  that  there  was  an  implied  grant  of  a  lateral  support  of 
the  building.69 

If  the  easement  exists,  the  owner  of  the  adjoining  soil  has 
no  more  right  to  remove  the  lateral  support  sufficient  to  main 
tain  the  increased  burden,  than  he  has  to  remove  the  support 
to  the  land  in  its  natural  state.  If  no  right  to  the  support 
of  the  extra  burdens  exists,  there  are  yet  some  obligations 
resting  on  the  owner  of  the  adjoining  land.  If  he  is  about  to 

"Aurora  vs.  Fox,  78  Ind.,  1. 
c°Gilmore  vs.  Driscoll,   122  Mass.,  199. 
"Mitchell  vs.  The  Mayor,  etc..  49  Ga.,  19. 
"'Montgomery  vs.  Masonic  Hall,  70  Ga.,  38. 


402  KASKMKNTS    AND    LICENSES. 

excavate  his  land,  so  that  the  support  to  the  adjoining  land 
may  be  endangered,  he  must:  perform  certain  duties.  First, 
he  must  notify  the  adjoining  owner  of  the  extent  and  nature 
of  the  excavations,  and  after  such  notice  give  him  a  reasonable 
opportunity  to  prop  up  -his  building,  for  which  purpose  a  rea 
sonable  use  may  be  made  of  the  premises  adjoining  the  build- 
ing.70 Second,  he  must,  in  carrying  on  his  work  of  excavating, 
exercise  reasonable  skill  and  care.71  Thus,  it  was  held  that, 
under  certain  circumstances,  an  excavation  should  be  made  in 
sections,  so  that  the  entire  wall  should  not  be  exposed  at  one 
time.72 

SUBJACENT   SUPPORT. 

THE  BIGHT  OF  SUBJACENT  SUPPORT  IS  THE  RIGHT  TO 
HAVE  ONE'S  LAND  SUPPORTED  BY  THE  SOIL  BENEATH  IT. 

We  have  seen  that  one  man  may  own  the  surface  and  an- 
other the  soil  or  a  portion  of  the  soil  beneath  the  surface. 

The  owner  of  the  portion  beneath  the  surface,  while  he 
has  a  right  to  work  or  mine  it,  must  not  take  away  a  support 
sufficient  to  maintain  the  surface  in  its  natural  condition; 
neither  is  he  entitled  to  remove  the  support  of  artificial  bur 
dens  which  were  on  the  surface  at  the  time  of  his  grant.73 

If  this  support  is  removed,  the  owner  of  the  lower  portion 
is  liable  for  damages  to  the  owner  of  the  surface;  and  he  is 
liable  for  injuries  to  buildings  erected  after  his  grant,  which 
are  occasioned  by  negligent  excavation.74 

Where  portions  of  a  house  are  owned  by  different  persons, 
the  same  general  principles  as  to  support  apply.  Thus,  the 

70Schultz  vs.  Byers,  53  N.  J.  L.,  442. 

Lawson  vs.  Railroad  Co.,  110  Mo.,  234. 
"United  States  vs.  Peachy,  36  Fed.  Rep..  160. 
7SLa  Sala  vs.  Holbrook,  4  Paige  Chy.,  169. 
TS Jones  vs.  Wagner.  66  Pa.  St.,  429. 
"Marvin  vs.  Mining  Co..  55  N.  Y.,  538. 


EASEMENTS    AND    LICENSES.  403 

owner  of  the  upper  story  has  a  right  to  have  it  supported  by 
the  lower  stories;  and  he  has  an  easement  in  the  halls  for 
ingress  and  egress  To  his  portion  of  the  building.75  The  owner 
of  the  lower  floor  has  an  easement  in  the  upper  half  for  pro- 
tection from  rain,  etc. 

In  such  a  ca.se  some  courts  hold  that  each  owner  must  keep 
his  respective  portion  in  good  repair,  while  other  courts  have 
indicated  that  the  expense  shall  be  a  common  chartre  on  all 
the  owners.76 

PARTY  WALLS. 

PARTY  WALLS  ARE  WALLS  BETWEEN  TWO  BUILDINGS, 
WHICH  ARE  USED  FOR  THE  MUTUAL  BENEFIT  OF  THE 
BUILDINGS. Tr 

The  essential  requisite  of  a  party  wall  is  that  it  may  not 
be  enjoyed  exclusively  by  one  owner  to  the  exclusion  of  an 
adjoining  owner,  but  may  be  enjoyed  by  each  of  the  adjoin- 
ing owrners  as  a  matter  of  right.78 

It  is  a  substitute  to  each  owner  for  a  separate  wall.79 
This  mutual  right  to  enjoy  the  wall  may  exist  under  va- 
rious circumstances. 

1.  The  wall  may  be  owned  by  the  adjoining  owners  as 
tenants  in  Common. 

2.  The  wall  may  be  divided  longitudinally  into  two  strips, 
one  belonging  to  each  of  the  neighboring  owners. 

3.  The  wall  may  be  owned  entirely  by  one  of  the  adjoin- 
ing owners,  and  be  subject  to  an  easement  or  right  in  the  other 
to  have  it  maintained  as  a  dividing  wall  between  the  two  tene- 
ments. 

"Mayo  vs.  Newhoff.  47  N.  J.  Eq.,  31. 
Cheeseborough  vs.  Green,  10  Conn..  318. 
7°Campbell  vs.  Mesier,  4  Johns  Chy.,  334. 
•'Harber  vs.  Evans,  101  Mo.,  661;  10  L.  R.  A.,  41. 
78Harber  vs.  Evans,  101  Mo.,  661. 
"Everett  vs.  Edwards,  149  Mass.,  588. 


404  EASEMENTS   AND   LICENSES. 

4.  The  wall  may  be  divided  longitudinally  into  two  moie- 
ties, each  moiety  being  subject  to  a  cross  easement  in  favor  of 
the  owner  of  the  other  moiety.80 

A  study  of  these  statements  will  disclose  to  the  student 
that  the  right  to  enjoy  a  party  wall  is  not  always  an  easement. 
Party  walls  may  be  created  by  prescription,  by  agreement,  or 
by  statute.  The  uninterrupted  use  of  another's  wall  by  the 
adjoining  owner  for  a  period  required  by  the  statute  of  limita- 
tions raises  a  presumption  of  a  grant.81 

The  most  common  method  of  creating  a  party  wall  is  by 
agreement.  Usually  the  parties  agree  to  build  a  wall  partly 
on  the  land  of  each  of  them,  to  be  used  as  a  common  wall  and 
to  be  paid  for  by  both  parties.  It  frequently  happens  that  only 
one  of  the  proprietors  desires  to  build  and  the  other  does  not.  in 
which  case  the  parties  usually  agree  that  the  proprietor  desir- 
ing to  build  the  wall  may  erect  it  partly  on  the  land  of  each 
owner,  at  his  own  expense,  and  that  when  the  ad- 
joining owner  desires  to  make  use  of  the  wall,  he  must  pay 
his  proportion  of  the  expense  of  building  the  wall.82  An  action 
at  law  can  be  maintained  on  a  promise  to  contribute  a  portion 
of  the  expense  of  a  party  wall.83  If,  under  the  terms  of  the 
agreement,  the  wall  does  not  belong  to  the  owner  not  erecting 
it  until  he  pays  his  share,  and  such  owner  conveys  his  prop- 
erty to  another  who  has  notice  of  the  agreement,  the  latter, 
if  he  makes  use  of  the  wall,  must  pay  a  proper  proportion  of 
the  cost  of  the  wall.84 

"This  statement  of  the  circumstances  under  which  a  party  wall 
may  exist  is  made  in  18  Am.  &  Eng.  Ency.,  4. 
^Schile  vs  .Brokhahus,  80  N.  Y.,  614. 
Bowling  vs.  Hennings,  20  Md.,  179. 
"Matthews  vs.  Dixey,  149  Mass.,  595;  5  L.  R.  A..  102. 
"'Swift  vs.  Calnan,  102  Iowa,  206;  37  L.  R.  A.,  462. 
"Maine  vs.  Cnmston,  98  Mass..  317. 


EASEMENTS   AND   LICENSES.  405 

A  contrary  rule  prevails  if  the  agreement  to  pay  is  merely 
a  personal  obligation  on  the  part  of  the  first  owner.85 

Under  some  circumstances  the  agreement  under  which  the 
right  to  use  the  wall  arises,  need  not  expressly  confer  the  right ; 
but  it  may  arise  from  an  implication.  Thus,  where  a  person 
owning  two  adjoining  lots,  erects  a  building  on  each  of  them, 
having  a  common  wall,  and  afterwards  conveys  the  lots  to  dif- 
ferent owners,  each  of  the  latter  has  an  easement  in  the  wall 
for  the  support  of  his  building.86 

In  some  States  party  walls  are  regulated  by  statute.  Under 
some  of  the  statutes  an  adjoining  owner  can  build  partly  on 
the  adjoining  property  and  compel  the  adjoining  owner  to  pay 
a  portion  of  the  expense  if  he  makes  use  of  the  wall.87 

Once  the  party  wall  is  created,  there  arise  certain  obliga- 
tions and  privileges  on  the  part  of  the  adjoining  owners.  The 
portion  of  the  wall  on  the  property  of  one  owner  is  his  own 
property,  but  it  is  burdened  with  an  easement  to  support  his 
neighbor's  building.  He  is  therefore  under  obligation  to  do 
nothing  which  will  impair  the  use  of  the  easement  by  his 
neighbor.  For  instance,  he  may  not  tear  down  the  wall ;  neither 
can  he  weaken  it  by  putting  in  windows  or  by  other  means.88 

A  PARTY  WALL  IS  A  SUBSTITUTE  FOB  SEPARATE 
WALLS,  AND  AN  ADJOINING  OWNER  MAY  MAKE  ANY  USE 
OF  IT  THAT  HE  COULD  OF  A  SEPARATE  WALL,  PROVIDING 
HE  DOES  NOT  IMPAIR  THE  RIGHTS  OF  HIS  NEIGHBOR.8' 

MList  vs.  Hornbrook.  2  W.  Va..  340. 
"Rogers  vs.  Sinsheimer,  50  N.  Y.,  646. 
"Everett  vs.  Edwards,  140  Mass.,  588;  5  L.  R.  A.,  110. 
''Bertram  vs.  Curtis,  31  la.,  46.      A  similar  statute  was  held  to  be 
unconstitutional  in  Massachusetts,  since  it  deprived  the  owner  of  his 
property  without  his  consent  or  due  process  of  law. 

Wilkins  vs.  .Tewett.  139  Mass.,  29. 
"Harber  vs.  Evans.  101  Mo..  661;  10  L.  R.  A..  41. 

Graves  vs.  Smith,  87  Ala..  450;  5  L.  R..A..  298. 

"Everett  vs.  Edwards.  149  Mass..  588;  5  L.  R.  A..  110. 

Heartt  vs.  Kruger,  121  N.  Y.,  386;  9  L.  R.  A.,  135. 


100  KA.SK.MKNTS   AND   LICENSES. 

Thus,  he  may  build  the  Avail  higher  or  alter  it  by  deepening 
the  foundation,  providing  he  does  not  injure  the  other  owner's 
right  in  the  wall."0 

The  rights  and  obligation  of  the  parties  do  not  continue 
for  any  definite  period.  The  rule  is  that  neither  of  the  parties 
can  impair  the  other's  easement,  so  long  as  the  party  wall 
fulfills  the  purpose  for  which  it  was  erected.  When  the  purpose 
for  which  it  was  created  ceases,  the  easement  ceases.  Thus,  the 
courts  have  held  that  the  easement  in  the  Avail  ceases  when 
the  house  of  which  it  was  a  part  is  destroyed,  even  though  the 
Avail  remains.01  The  easement  continues  for  the  natural  life 
of  the  walls  or  for  its  actual  life  if  it  be  destroyed.  Of  course, 
there  may  be  inserted  in  the  agreement  provisions  as  to  re- 
building in  case  of  destruction. 

As  a  general  rule,  either  of  the  parties  may  make  necessary 
repairs  to  the  wall  and  enforce  a  contribution  from  the  other 
owner.92 

In  the  absence  of  an  agreement,  express  or  implied,  one 
using  a  party  wall  erected  by  another  is  not  under  a  legal  obli- 
gation to  pay  for  it.93 

WATER. 

The  rights  which,  riparian  owners  and  others  have  in  water, 
vary  under  different  circumstances.  We  will  consider  these 
rights  in  reference,  first,  to  natural  watercourses,  second,  to 
artificial  watercourses,  and,  third,  to  percolating  and  surface 
water. 

•'Field  vs.  Letter,  118  111.,  17. 

Negus  vs.  Becker,  143  N.  Y.,  303;  25  L.  R.  A.,  667. 

Matthews  vs.  Dixey,  149  Mass.,  595;  5  L.  R.  A.,  102. 
"Hoffman  vs.  Kubn,  57  Mass.,  746. 
"List  vs.  Hornbrook,  2  W.  Va.,  340. 
"Abrahams  vs.  Krautler,  24  Mo.,  69. 


EASEMENTS   AND   LICENSES.  407 

NATURAL  WATERCOURSES. 

A  watercourse  has  been  defined  as  "a  living  stream  with 
defined  banks  and  channels,  not  necessarily  running  all  the 
time,  but  fed  from  other  and  more  permanent  sources  than 
mere  surface  water."04 

There  is  no  right  of  property  in  natural  watercourses.  The 
riparian  owners  have  a  natural  right,  as  an  incident  to  their 
ownership,  to  make  use  of  a  natural  watercourse.  This  right  is 
not  absolute,  but  is  limited  and  qualified  by  a  similar  right  in 
others.  The  riparian  owner  may  make  a  reasonable  use  of  the 
wrater  for  domestic,  agricultural  and  manufacturing  purposes, 
but  in  doing  so  he  must  have  regard  to  similar  rights  of  others 
below  and  above  him  on  the  same  stream.95  It  is  impossible 
to  state  any  general  rule  by  which  it  may  be  determined  what 
is  a  reasonable  use,  since  each  case  must  rest  upon  its  own  par- 
ticular circumstances. 

The  size  of  the  stream,  the  velocity  of  the  current,  the  nature 
of  the  bank,  the  character  of  the  soil,  the  necessity  for  the 
use,  and  the  general  custom  as  to  usage,  must  all  be  taken  into 
consideration.06  If  a  reasonable  use  is  made  of  the  stream, 
the  lower  owner  has  no  cause  of  action.97  In  the  case  of  a  small 
spring,  which  was  accustomed  to  run  through  another's  land, 
it  was  held  that  a  riparian  owner  might  appropriate  the  entire 
flow  if  it  was  necessary  to  supply  his  natural  wants,  that  is, 
wants  necessary  to  be  supplied  for  the  existence  of  man  and 
beast. 

"Jotters  vs.  Jeffers,  107  N.  Y.,  650. 
"Merrifield  vs.  Worcester,  110  Mass.,  219. 

Ulbricht  vs.  Eufaula  Water  Co.,  8G  Ala.,  587;  4  L.  R.  A.,  572. 

Fulmer  vs.  Williams.  122  Pa.,  191;  1  L.  R.  A.,  003. 
90Timm  vs.  Bear,  29  Wis.,  265. 

Baltimore  vs.  Appold,  42  Ind..  457. 
"Merritt  vs.  Brinkerhoff,  17  Johns.  (N.  Y.),  306. 

Dumont  vs.  Kellogg,  29  Mich.,  420. 

Merrifield  vs.  Worcester,  110  Mass1.,  219. 


408  EASEMENTS   AND   LICENSES. 

THE  GENERAL  RULE  IS  THAT  ANY  USE  OF  THE  STREAM 
WHICH  MATERIALLY  AFFECTS  ITS  QUANTITY  OR  QUALITY, 
AND  PREVENTS  IT  FROM  FLOWING  TO  THE  LOWER  OWNER 
IN  ITS  NATURAL  STATE,  IS  AN  UNREASONABLE  USE. 

BY  this  is  not  meant  that  under  some  circumstances  the 
flow  of  the  stream  may  not  be  lessened,  but  rather  that  a  use 
which  materially  impairs  another's  natural  right  to  enjoy  the 
stream,  is  unreasonable.  Thus  the  diversion  of  the  natural 
course  of  the  stream,  so  .as  to  deprive  the  lower  owner  of  its 
use,  is  an  unreasonable  use,  and  the  lower  owner  may  have 
redress  for  the  same."  Xeither  may  the  water  be  polluted,  for 
the  lower  owner's  rights  extend  to  the  quality  as  well  as  to  the 
quantity  of  the  water.100  The  lower  owner  is  also  entitled  to 
the  natural  flow  of  the  stream,  so  that  an  upper  owner  will  be 
responsible  for  any  damage  from  overflow  resulting  from  his 
removal  of  a  natural  barrier.101 

It  is  a  question  for  the  jury  to  determine  under  all  the  cir- 
cumstances, whether  or  not  a  particular  use  of  the  stream  is 
reasonable.102 

The  natural  rights  in  the  stream  as  stated  are  incidental  to 
a  riparian  ownership  only,  and  do  not  extend  to  the  owners  of 
property  not  bordering  on  the  stream.103 

"Hogg  vs.  Water  Co.,  168  Pa.  St.,  456. 

West  .Point  Iron  Co.  vs.  Reymert,  45  N.  Y.,  705. 
"•Rumsey  vs.  N.  Y.  &  N.  E.  R.  Co.,  133  N.  Y.,  79;  15  L.  R.  A.,  618. 
Drake  vs.  Lady  Ensley  Coal  Co.,  102  Ala.,  501;  24  L.  R.  A.,  64. 
Holsoman  vs.  Boiling  Springs  Bleaching  Co.,  14  N.  J.  Eq.,  335. 
Greene  vs.  NunnemacEer,  36  Wis.,  50. 
"'Grant  vs.  Kuglar,  81  Ga.,  637;  3  L.  R.  A.,  606. 
'Tool  vs.  Lewis,  41  Ga.,  162. 

Holden  vs.  Lake  Co.,  53  N.  H.,  552. 

103Henry  vs.  Newburyport,  149  Mass.,  582;  5  L.  R.  A.,  179. 
Hayden  vs.  Long,  8  Oregon,  244. 
Aetna  Mills  vs.  Waltham,  126  Mass.,  422. 
Huston  vs.  Bybee,  17  Oregon,  140;  2  L.  R.  A.,  568. 
Prentice  vs.  Geiger,  74  N.  Y.,  342. 
Huston  vs.  Bybee,  17  Oregon,  140;  2  L.  R.  A.,  568. 


EASEMENTS   AND   LICENSES.  409 

These  natural  rights  may  be  extended  and  increased,  and 
the  acquired  rights  in  a  stream,  over  and  above  the  natural 
rights,  are  easements. 

Easements  in  a  stream  may  be  acquired  by  prescription  or 
by  grant.  The  adverse  and  continuous  user  of  a  right  in  a 
stream,  greater  than  a  natural  right,  for  a  period  required  by 
the  statute  of  limitations  in  reference  to  adverse  user  of  lands, 
give  rise  to  a  presumption  of  a  grant  of  the  increased  right. 
After  the  right  by  prescription  is  acquired  the  rights  thereby 
acquired  become  a  substitute  for  the  natural  conditions  pre- 
viously existing,  and  the  parties  interested  may  compel  the 
maintenance  of  the  new  conditions.105  Thus,  the  right  to  main 
tain  a  dam  which  infringes  upon  the  natural  rights  of  a  lower 
owner,  may  be  acquired  by  an  adverse  user  for  twenty  years.100 

In  some  of  the  western  States  the  courts  hold  that  one  who 
first  appropriates  a  stream  has  a  special  right  in  it;107  but  as  a 
general  rule,  a  riparian  owner  has  no  greater  right  in  a  stream 
than  his  natural  right,  unless  his  appropriation  be  adverse  and 
continued  for  a  period  required  by  the  statute  of  1  imitations.1 0!> 

Riparian  rights  will  not  be  lost  by  a  mere  non-user.100 

So,  also,  the  rights  of  the  riparian  owner  may  be  increased 
by  an  agreement  or  grant  from  the  persons  affected  by  the  in- 
creased user.110 

In  navigable  rivers,  the  rights  of  the  riparian  owner  must 
be  enjoyed  in  a  manner  consistent  with  the  right  of  the  public 

105Smith  vs.  Youmans,  96  Wis.,  103:  37  L.  R.  A.,  285. 
l06Campbell  vs.  Talbot,  132  Mass..  174.    • 

Mathewson  vs.  Hoffman,  77  Mich.,  420;  6  L.  R.  A.,  349. 
mlrwin  vs.  Phillips,  5  Cal..  146. 

Schilling  vs.  Roniinger,  4  Colo..  100. 

Reno  Smelting  Co.  vs.  Stevenson.  20  Nev..  269;  4  L.  R.  A.,  60. 
ll>8Dumont  vs.  Kellogg.  29  Mich..  420. 

Bearse  vs.  Perry,  117  Mass.,  211. 

Huston  vs.  Bybee,  17  Or.,  140;  2  L.  R.  A..  568. 
'""Whitney  vs.  Wheeler  Cotton  Mills.  151  Mass..  396. 
""Stowell  vs.  Lincoln,  77  Mass.,  434. 


410  EASEMENTS   AND   LICENSES. 

to  use  the  stream  for  navigation;111  and  no  prescriptive  rights 
can  arise  therein  as  against  the  public.112 

ARTIFICIAL  WATERCOURSES. 

The  lower  owners  have  no  natural  rights  in  an  artificial 
watercourse.  They  have  no  right  to  its  continual  flow  or  en- 
joyment, unless  they  acquire  such  a  right  either  by  grant  or  by 
prescription.113 

Canals  are  the  most  familiar  examples  of  artificial  water- 
courses. 

PERCOLATING  AND  SURFACE  WATER. 

Percolating  and  surface  waters,  not  running  in  a  defined 
channel,  are  considered  as  part  of  the  land,  and  may  be  the 
subject  of  absolute  ownership.114 

The  owrner  may  entirely  appropriate  the  surface  water  or 
divert  it  in  any  proper  way.115 

So,  he  may  sink  shafts  and  make  any  lawful  and  exclusive 
use  of  subterranean  waters,  and  this  is  true,  even  though 
his  neighbor's  well  be  injured  thereby.136  But  the  diversion  or 
pollution  of  a  subterranean  stream  flowing  in  a  well  defined 
channel  is  governed  by  the  same  rules  as  a  running  stream  on 
the  surface  of  the  earth.117 

An  adjoining  owner  maj*  not  cut  off  the  supply  to  his  neigh- 
bor's well  simply  for  the  purpose  of  injuring  him.118 

There  is  a  difference  of  opinion  as  to  the  rights  of  drainage 
of  surface  water.  In  many  States  the  upper  owner  has  a  right 

mHubbard  vs.  Bell,  54  111.,  110. 

"'Concord  Mfg.  Co.  vs.  Robertson.  66  N.  H..  1;  18  L.  R.  A.,  679. 

"'Murchie  vs.  Gates,  78  Me.,  300. 

Taylor  vs.  Fickas,  64  Ind..  167. 
"'Chase  vs.  Silverstone.  62  Me..  175. 

"'Johnson  vs.  Ch..  St.  P.  &  O.  R.  Co..  80  Wis..  641;  14  L.  R.  A..  495. 
"'Ocean  Grove  Ass'n  vs.  Asbury  Park,  40  N.  J.  Eq.,  447. 

Kinnaird  vs.  Standard  Oil  Co..  89  Ky..  468;  7  L.  R.  A..  451. 
"'Tampa  Water  Works  Co.  vs.  Cline.  37  Fla.,  586;  33  L.  R.  A..  376. 
"•Chase  vs.  Silverstone.  62  Me.,  175. 


EASEMENTS    AND    LICENSES.  411 

to  the  natural  drainage  of  surface  water  over  his  neighbor's 
land.  In  these  States  the  courts  hold  that  the  lower  owner  has 
no  right  to  obstruct  the  natural  flow  of  the  water  froni  the 
higher  land.119  This  servitude  extends  only  to  the  natural  flow 
and  does  not  entitle  the  higher  owner  to  increase  the  flow  by 
diverting  water  which  would  naturally  flowT  in  another  direc- 
tion.120 

The  courts  holding  this  view  base  it  on  the  reasoning  that 
nature  intended  such  a  drainage,  and  that  it  is  just  that 
property  should  be  held  subject  to  the  pre-existing  laws  and 
arrangements  of  nature.121 

In  other  States  the  courts  hold  that  the  lower  owner  may, 
under  some  circumstances,  obstruct  the  flow  of  surface  water 
on  his  land,  which  naturally  flows  from  his  neighbor's  land. 
This  ruling  is  based  upon  Ilie  holding  that  a  man  may  use  his 
land  for  any  lawful  purpose  as  he  pleases,  and  that  an  improve- 
ment of  it,  which  changes  the  surface  and  prevents  or  changes 
the  natural  flow  is  a  legal  right.122  The  right  to  drain  surface 
water  over  another's  laud  may  be  acquired  by  prescription.123 
So,  also,  the  right  to  have  the  rain  dripping  from  one's  roof  on 
another's  land,  may  be  acquired  by  prescription. 

HIGHWAYS. 

A  BIGHT  OF  WAY  IS  A  RIGHT  TO  PASS  OVER  ANOTHER'S 
LAND. 

There  is  nothing  unusual  in  the  law  of  rights  of  ways;  they 
are  the  most  common  easements  and  are  subject  to  the  princi- 

""Vannest  vs.  Fleming,  79  Iowa,  638;  8  L.  R.  A.,  277. 
'-"Anderson  vs.  Henderson,  124  111.,  170. 

Wharton  vs.  Stevens,  84  Iowa,  107;  15  L.  R.  A.,  630. 
'-•'Gillham  vs.  Madison  Co.  R.  Co.,  49  111.,  484. 

Hughes  vs.  Anderson,  68  Ala.,  280. 

Boynton  vs.  Langley,  19  Nev.,  72. 
'"Taylor  vs.  Fickas,  64  Ind.,  167. 

Morrison  vs.  Bucksport,  67  Me.,  355. 
'"Gregory  vs.  Bush,  64  Mich.,  37. 


412  EASEMENTS   AND   LICENSES. 

pies  already  stated.  In  this  connection  we  cannot  do  more  than 
call  the  attention  of  the  student  to  the  application  of  some  of 
those  principles  to  rights  of  persons  in  private  and  public  ways. 

PRIVATE  WAYS. 

The  place  from  which  the  right  of  way  starts  on  the  dom- 
inant estate  is  called  the  terminus  a  quo,  and  the  place  where 
it  ends  on  the  servient  estate  is  called  the  terminus  ad  quem. 

A  private  right  of  way  may  be  created  in  any  of  the  ways 
already  mentioned.  When  the  way  is  created  by  a  grant  for 
a  particular  purpose,  the  grantee  is  limited  to  the  use  of  the 
way  to  the  purpose  ami  in  the  manner  mentioned  in  the  grant, 
"He  cannot  go  out  of  the  limits  of  the  way,  nor  use  it  to  go  to 
any  other  place  for  any  other  purpose  than  that  specified,  if  the 
use  in  this  respect  is  restricted.''124  Thus,  where  the  owner 
conveyed  a  portion  of  his  land  reserving  a  right  of  way  across 
it,  "for  the  purpose  of  carting  wood/'  it  was  held  that  the  right 
of  way  was  limited  to  the  purpose  of  carting  wrood,  and  could 
not  be  enlarged.125 

Where  the  grant  is  in  general  terms  or  for  all  purposes,  or 
the  way  arises  from  necessity,  the  use  of  it  is  not  restricted  to 
any  particular  purpose,  but  the  grantee  may  use  it  for  all  pur- 
poses reasonably  necessary  to  the  enjoyment  of  the  dominant 
estate.  If  the  right  of  way  be  particularly  described  in  the 
grant,  as,  for  instance,  by  the  words  "as  it  is  now  established," 
the  servient  owner  cannot  abridge  the  use  of  the  way  without 
the  consent  of  the  dominant  owner.126 

Where  a  grant  is  made  of  land  surrounded  or  nearly  sur- 
rounded by  land  of  the  same  owner,  or  partly  by  land  of  the 

124French  vs.  Marstin,  24  N.  H.,  440. 
125Myers  vs.  Dunn,  49  Conn.,  71. 
'"Williams  vs.  Clark,  140  Mass.,  238. 

Kingsley  vs.  Gouldsboro  Land  Imp..  Co.,  86  Me.,  279;  25  L.  R.  A., 
502 


EASEMENTS    AND    LICENSES.  413 

same  owner  and  partly  by  land  of  a  stranger,  in  order  that  the 
right  to  a  private  way  may  arise,  there  must  be  a  reasonable 
necessity,  and  a  mere  inconvenience  will  not  entitle  a  person 
to  such  right.127 

The  necessity  for  a  way  varies  with  the  particular  circum- 
stances, and  it  is  impossible  to  give  any  exact  principle  by 
which  it  may  be  determined  what  are  ways  of  necessity  and 
what  are  not.  An  inconvenience  is  not  sufficient  to  create  a 
way  by  implication,  but  there  must,  under  all  circumstances, 
be  a  reasonable  necessity  for  it.128 

A  private  way  by  necessity  is  not  a  permanent  right  if  the 
necessity  is  not  permanent ;  when  the  necessity  ceases,  the  right 
of  way  ceases.129  When  a  right  of  way  by  necessity  exists  it  is 
the  right  of  the  owner  of  the  land  to  fix  the  line  in  which  it 
shall  run;  and  on  his  failure  to  do  so,  the  dominant  owner  may 

locate  it.130 

. 

" 
PUBLIC  WAYS  AND  HIGHWAYS. 

A  highway  is  a  public  road  which  every  citizen  has  a  right 
to  use.131 

Public  ways  are  not  easements,  in  the  proper  use  of  the 
term,  since  they  are  not  appurtenant  to  a  dominant  estate. 
They  belong  to  the  public  and  to  each  member  of  the  public, 
and  if  they  are  obstructed  a  right  of  Action  is  usually  brought 
in  the  name  of  some  corporate  body  Representing  the  public. 

127Lawton  vs.  Rivers,  2  Me.  S.  (S.  C.).  445. 

See  Hollenbeck  vs.  McDonald,  112  Mass..  249. 
118Root  vs.  Wadhams,  107  N.  Y.,  384. 

Hollenbeck  vs.  McDonald,  112  Mass.,  249. 
""Pierce  vs.  Selleck,  18  Conn.,  322. 
""Powers  vs.  Harlow,  53  Mien.,  507. 
:tlStackpole  vs.  Healy,  16  Mass.,  33. 

"To  constitute  a  highway  the  way  must  be  one  over  which  all  the 
people  of  the  State  have  a  common  and  an  equal  right  to  travel,  or  at 
least  a  general  interest  to  keep  unobstructed." 
People  vs.  Jackson.  7  Mich..  432. 


414  KASKMKNTS    AND    LH'KNSKS. 

In  many  cases  the  title  to  the  highway  is  in  the  public,  in  which 
case  it  cannot  be  said  an  easement  exists. 

In  many  States  the  ownership  of  the  soil  is  in  the  adjoining 
owners,  subject  to  the  right  of  the  public  to  drive  over  it,  and 
they  may  sell  or  make  any  use  of  the  land  not  inconsistent 
with  the  public  easement.132 

The  right  to  a  highway  is  acquired  either  by  prescription, 
dedication  or  gran't.  and  by  eminent  domain.13" 

PRESCRIPTION. 

In  some  States  the  right  of  the  public  to  a  right  of  way  may 
be  acquired  by  prescription,  that  is.  by  an  adverse,  contin- 
uous and  uninterrupted  user  of  a  way  by  the  public  for  the 
period  required  by  the  statute  of  limitations.134  At  the  ex- 
piration of  this  period  it  is  presumed  that  the  owner  of  the 
land  dedicated  it  to  the  public.1"5 

DEDICATION. 

Dedication  has  been  aptly  defined  as  "an  appropriation  of 
land  to  some  public  use  by  the  owner  of  the  fee  and  an  accept- 
ance for  such  use  by  or  on  behalf  of  the  public."130  The  doc- 
trine of  dedication  has  grown  out  of  the  common  law.  In  many 
States  statutes  have  been  passed  which  provide  that  dedica- 
tions may  be  made  in  certain  ways,  so  that  dedications  have 
sometimes  been  divided  into  two  classes,  viz.,  common  law  dedi- 
cations and  statutory  dedications. 

COMMON  LAW  DEDICATION. 

To  constitute  a  common  law  dedication,  there  must  be : 
First.     An  intention  on  the  part  of  the  owner  of  the  fee  to 

dedicate  the  right  of  way  to  the  public.    This  intention  need 

"Deerfleld  vs.  Railroad  Co..  144  Mass.,  325. 
"Whitbeck  vs.  Cook,  15  Johns.  (N.  Y.).  483. 
MRoss  vs.  Thompson,  78  Ind..  90. 
"Kruger  vs.  Le  Blanc,  70  Mich..  76. 
"Angell  on  Highways,  Sec.  132. 


EASEMENTS   AND   LICENSES.  415 

not  be  expressed  in  writ  ing,  but  it  may  be  shown  by  any  of  his 
actions  which  tend  to  indicate  an  intention  to  dedicate  the 
right  of  way  to  the  public.  For  instance,  it  may  be  indicated 
by  a  parol  or  implied  assent  to  the  user  of  the  public,137  by  plat- 
ting property  bounded  by  streets  shown*  in  a  plat,1"8  and  by  any 
act  manifesting  an  intention  to  dedicate. 

"The  vital  principle  of  a  dedication  is  the  intention  to 
dedicate,  and  whenever  this  is  irrevocably  manifested,  the  dedi- 
cation, so  far  as  the  owner  of  the  soil  is  concerned,  has  been 
made."139 

Second.  The  dedication  must  be  accepted  by  the  public.  A 
formal  acceptance  on  the  part  of  the  public  is  not  required.  It 
has  been  held  by  some  courts  that  it  is  sufficient  if  the  public 
travel  on  the  way  dedicated  and  make  continuous  use  of  it  in 
the  manner  intended.140  Other  courts  hold  that  the  accept- 
ance must  be  by  the  proper  public  authorities.141 

Statutes  have  been  passed  in  many  States  prescribing  what 
shall  be  necessary  to  constitute  an  acceptance  by  the  public. 
In  the  absence  of  statute,  as  a  general  rule,  user  of  the  public 
is  an  evidence  of  the  assent  of  the  public  or  of  the  public  au- 
thorities. Whether  or  not  there  has  been  a  common  law  dedi- 
cation is  a  question  for  the  jury  to  decide,  from  all  the  circum- 
stances of  the  case.142 

11THall  vs.  McLeod,  2  Met.  (Ky.),  98. 
'"Livingston  vs.  Mayor,  8  Wend.  (N.  Y.),  85. 

Boyer  vs.  State,  IB  Ind.,  451. 

Huff  vs.  Winona  and  St.  P.  R.  Co.,  11  Minn.,  180. 
'"Harding  vs.  Jasper,  14  Cal.,  643. 
I4"Harding  vs.  Jasper,  supra. 

People  vs.  Davidson,  79  Cal.,  166. 

Green  vs.  Canaan,  29  Conn.,  157. 

Curtiss  vs.  Hoyt,  19  Conn.,  154. 

141Kelley  case,  8  Gratt  (Va.),  632. 

As  to  rule  in  Michigan,  see  Detroit  vs.  D.  &  M.  Railroad,  23  Mich., 
172-209. 


EASEMENTS    AND    LICENSES. 

After  there  has  been  an  acceptance,  the  owner  cannot  re- 
voke his  dedication,  but  he  may  revoke  it  at  any  time  prior  to 
an  acceptance.143  A  common  law  dedication  does  not  give  to 

the  public  any  title  to  the  soil,  but  only  an  easement  in  it. 

• 

STATUTORY   DEDICATIONS. 

Statutes  have  been  passed  in  many  States  setting  forth  the 
method  by  which  an  owner  may  dedicate  a  highway  to  the  pub- 
lic, and  by  what  acts  and  persons  an  acceptance  may  be  made. 
As  a  general  rule  those  statutes  provide  that  when  an  owner 
desires  to  plat  his  property  and  to  dedicate  streets  to  the  pub- 
lic, he  musi  properly  prepare  and  acknowledge  a  plat,  submit 
it  to  certain  public  authorities,  and  if  accepted  by  them,  record 
it,  with  the  proper  registering  officer.  Usually  the  statutory 
provisions  do  not  abrogate  the  right  to  make  a  common  law 
dedication,  and  it  has  been  held,  where  there  has  been  an 
ineffectual  attempt  to  make  a  statutory  dedication  by  reason 
of  failure  to  comply  with  the  statute,  that  the  dedication  might 
become  effective  as  a  common  law  dedication,  if  there  has  been 
an  acceptance  by  the  public. 

As  a  general  rule,  statutory  dedications  vest  the  title  to  the 
highway  in  a  public  body  for  the  benefit  of  the  public. 

LICENSES. 

A  LICENSE  MAY  BE  DEFINED  TO  BE  AN  AUTHORITY  CON- 
FERRED UPON  ONE  TO  DO  AN  ACT,  OR  A  SERIES  OF  ACTS, 
UPON  LAND,  OR  TO  OCCUPY  THE  LAND  FOR  A  CERTAIN  PUR- 
POSE, BY  ONE  WHO  DOES  NOT  THEREBY  ACQUIRE  THE 
RIGHT  TO  POSSESSION,  OR,  AS  IT  IS  OTHERWISE  EXPRESSED, 
BY  ONE  WHO  DOES  NOT  ACQUIRE  ANY  ESTATE  IN  THE 
LAND. 

'"Harding  vs.  Jasper,  supra. 

'"Fulton  vs.  Mehrenfeld,  8  Ohio  St.,  440. 

Smith  vs.  Lock,  18  Mich.,  56. 

Sinclair  vs.  Comstock,  Hr.  Ch.  (Mich.),  404. 


BASEMENTS   AND   LICENSES.  417 

Licenses  are  of  two  kinds;  implied  licenses  and  express  li- 
censes; those  which  are  created  by  the  law,  and  those  which, 
are  granted  by  the  party.  There  is  an  implied  license  to  enter 
upon  the  land  of  another  for  any  lawful  purpose,  consistent 
with  the  manners  and  customs  of  the  locality.  People  have  an 
implied  license  to  seek  others  in  their  houses  or  places  of  busi- 
ness to  transact  business  with  them,  to  pay  social  visits,  or  for 
any  other  lawful  purpose  consistent  with  the  manners  and  cus- 
toms of  the  locality. 

This  doctrine  is  illustrated  by  a  case  in  which  it  appeared 
that  one  had  intruded  upon  another's  land  to  fish  in  a  private 
pond.  It  was  held  that  the  owner  of  land  enclosing  a  small 
lake  had  the  exclusive  right  of  fishing  in  tlie  lake ;  but,  it  always 
having  been  customary  in  that  locality  to  permit  the  public  to 
take  fish  in  such  lakes  and  ponds,  one  may  be  presumed  to  have 
a  license  to  do  so,  and  passing  over  another's  land  to  fish  in 
the  lake  does  not  make  him  a  trespasser,  unless  he  knows  that 
there  is  an  objection  to  his  doing  so.144  This  sort  of  license 
being  based  upon  the  presumed  consent  of  the  person  in  pos- 
session ceases  to  exist  as  soon  as  it  is  known  that  there  is  in 
fact  no  such  consent,  and,  therefore,  when  one  enters  upon  the 
possession  of  another  in  reliance  upon  a  presumed  consent,  he 
must  withdraw  so  soon  as  he  knows  that  his  presence  is  ob- 
jected to.145  And  this  sort  of  license  is  subject  to  another  quali- 
fication, namely,  that  it  must  not  be  abused.  For,  as  it  was  held 
in  the  famous  Six  Carpenters'  Case,148  he  who  enters  upon 
the  premises  of  another  by  virtue  of  a  license  implied  by  law  and 
then  abuses  this  license,  is  a  trespasser,  not  only  from  the  time 
of  his  wrongdoing,  but  is  to  be  regarded  as  a  trespasser  ab 

"'Marsh  vs.  Colby,  39  Mich.,  626. 
145Breitenbach  vs.  Trowbridge,  64  Mich.,  393. 
""Smith  Lead.  Cas.,  62. 


418  EASEMENTS  AND  LICENSES. 

initio.147  But  one  who  abuses  an  express  license  granted  him 
by  the  party,  is  not  a  trespasser  ab  initio,  and  his  original  en- 
try being  lawful,  remains  lawful. 

There  is  another  kind  of  license  implied  by  law  which  does 
not  rest  upon  the  presumed  consent  of  the  party,  but  upon  the 
necessity  of  the  case.  Such  licenses  rest  upon  the  legal  maxim 
"necessitas  inducit  privilegiuni  quoad  jura  privata."148 

Such  a  license  is  analogous  to  the  rights  which  the  public 
or  the  State  has  in  all  property  by  virtue  of  what  is  called  the 
law  of  eminent  domain.  An  instance  of  such  a  license  is 
found  in  the  doctrine  that  if  a  highway  be  out  of  repair  and  im- 
passable, a  traveler  may  lawfully  go  over  the  adjoining  land. 
"To  hold  a  party  guilty  of  trespass  for  passing  over  another's 
land,  under  the  pressure  of  such  a  necessity,  would  be  pushing 
individual  rights  of  property  to  an  unreasonable  extent,  and 

""Sterling?  vs.  Jackson,  69  Mich.,  488. 

This  was  an  action  for  trespass  upon  land  covered  by  water.  The 
declaration  alleges  that  the  defendant  broke  and  entered  plaintiff's 
close,  and  with  his  boat,  oars  and  paddle,  in  punting  and  rowing,  de- 
stroyed the  wild  rice  and  grass  there  growing,  and  with  his  gun  shot 
and  killed  ducks  and  game  there  feeding.  It  was  conceded  that  the 
place  where  the  trespass  took  place  was  a  navigable  bay  off  Lake  Erie, 
and  that  plaintiff  was  the  owner  of  the  soil  under  the  bay.  The  plain- 
tiff contended  that  as  owner  of  the  soil  he  had  the  exclusive  right 
of  hunting  within  the  boundaries  of  his  property,  and,  that  while  the 
public  had  a  right  of  navigation  over  the  property,  such  right  was  a 
mere  easement  and  extended  simply  to  a  right  of  passage  over  his 
land. 

The  defendant  contended  that  the  bay  being  navigable,  he  had  a 
right  to  go  upon  it,  and  that  in  doing  so  he  did  not  commit  a  trespass; 
that  having  the  right  to  be  where  he  was,  he  had  also  the  right  to 
shoot  wild  ducks  flying  by,  since  there  was  no  property  in  wild  fowl 
until  captured. 

The  court  held  that  the  defendant  had  no  right  to  be  where  he 
was,  except  for  the  purpose  of  pursuing  the  implied  license  held  out 
by  the  owner  of  the  land  to  the  public  of  navigating  the  waters  over 
his  land,  and  that  every  other  beneficial  use  and  enjoyment  belonged 
to  the  owner  of  the  soil.  The  acts  of  defendant  were  held  to  be  a  vio- 
lation of  the  license  to  navigate,  and  the  exclusive  right  of  the  owner 
of  land,  whether  it  be  upland  or  covered  with  water,  to  hunt  thereon 
was  maintained.  Judgment  in  favor  of  plaintiff  affirmed. 

""I  Bacon.  Max.  reg.,  5. 


EASEMENTS   AND   LICENSES. 

giving  them  a  protection  beyond  that  which  finds  a  sanction  in 
the  rules  of  law.  The  temporary  and  unavoidable  use  of  private 
property  under  the  circumstances  supposed  must  be  regarded 
as  one  of  those  incidental  burdens  to  which  all  property  in  a 
civilized  community  is  subject."150 

Besides  the  licenses  implied  "by  law,  are  licenses  expressly 
granted  by  the  party.  If  one  employs  another  to  build  a  house 
upon  his  land,  the  builder  has  an  implied  license  to  enter  upon 
the  land  and  generally  to  occupy  it  so  far  as  may  be  necessary 
to  carry  out  his  contract.  But  this,  like  all  licenses  granted 
by  the  party  which  are  not  coupled  with  an  interest,  is  a  revo- 
cable license  and  may  be  revoked  at  any  time  at  the  mere  will 
of  the  party  granting  it,  although  granted  to  continue  for  a  cer- 
tain time.151  It  is  also  true  that  revocable  licenses  confer  only 
a  personal  right  and  are  not  assignable.152 

But  licenses  coupled  with  an  interest,  as  it  is  expressed,  are 
not  revocable.153  Therefore,  if  one  sells  and  transfers  by  an 
instrument  in  writing  to  another  the  standing  timber  on  a  tract 
of  land  and  the  right  to  remove  it  at  any  time  within  six 
months,  this  license  is  not  revocable.154  In  general  terms,  it 
may  be  said  that  any  license  for  which  a  party  has  given  a 
valuable  consideration  will  be  considered  a  license  coupled 
with  an  interest,  and,  therefore,  irrevocable.155 

In  some  States  it  has  been  held  that  the  expenditures  of 
money  on  the  faith  of  the  continuance  of  the  license  renders  the 
license  irrevocable.150 

"Campbell  vs.  Race,  7  Gush.,  408. 

"Fluker  vs.  Georgia  R.  &  Banking  Co.,  81  Ga.,  461;  2  L.  R.  A.,  843. 
"Curtis  vs.  La  Grande  Hydraulic  Co.,  20  Or.,  34;  10  L.  R.  A,,  484. 
"Chicago  and  I.  R.  Co.  vs.  Hall,  135  Ind.,  91;  23  L.  R.  A.,  231. 
"In  such  a  case  the  grantee  is  not  a  mere  licensee,  but  is  an  owner. 

Mee  vs.  Benedict,  98  Mich.,  260;  22  L.  R.  A.,  641. 
""Nowlin  vs.  Whipple,  120  Ind.,  596;  6  L.  R.  A.,  159. 
"•Pierce  vs.  Cleland,  131  Pa.  St.,  189;  7  L.  R.  A.,  752. 
Curtis  vs.  La  Grande  Hydraulic  Water  Co.,  20  Or.,  34;  10  L.  R.  A., 
484. 


420  BASEMENTS  AND  LICENSES. 

It  is  sometimes  difficult  to  determine  whether  a  given  instru- 
ment is  a  license  or  a  lease.  But  the  tendency  of  the  courts 
is  to  construe  all  grants  of  exclusive  rights  in  land  for  a  given 
term  as  leases,  and  not  as  licenses.107 

A  query  may  suggest  itself  to  the  mind  of  the  reader 
whether  one  who  has  an  irrevocable  license  has  a  right  to 
assert  it  forcibly  against  one  in  possession  who  resists  its  execu- 
tion. He  has  not.  If  the  party  in  possession  bars  the  licensee's 
entry  by  force,  the  licensee  must  resort  to  the  courts.  For  if 
a  party  entitled  to  possession  has  no  right  to  take  pos- 
session by  force,  neither  has  one  with  any  less  right  than 
the  right  to  possession,  a  right  to  use  force  to  secure  that 
lesser  right.158  This  is  in  accordance  with  the  general  principle 
of  the  law,  that  the  public  peace  and  tranquility  are  of  more 
importance  than  anyone's  private  right.  Therefore,  the  enforce- 
ment of  private  rights  must  be  sought  in  the  courts.  No  one 
may  take  the  law  into  his  own  hands,  and  if  he  attempts  to  do 
so  and  a  breach  of  the  peace  results,  he  is  considered  a  wrong- 
doer. The  one  in  peaceable  possession,  whether  of  land  or 
goods,  has  a  right  to  use  force  to  maintain  it,  and  a  claimant 
must  resort  to  the  courts.  The  doctrine  is  carried  so  far  that  a 
private  citizen  who  attempts  to  recover  his  own  stolen  property 
by  force,  is  guilty  of  assault  and  battery.159 

The  general  doctrine  is  stated  by  Blackstone  in  these  words: 
"The  public  peace  is  a  superior  consideration  to  any  one  man's 
private  property;  and  if  individuals  were  allowed  to  use  pri- 
vate force  as  a  remedy  for  private  injuries,  all  social  justice 
must  cease,  the  strong  would  give  law  to  the  weak,  and  every 
man  would  revert  to  a  state  of  nature."160 

ml  Coal  Co.  vs.  Peers,  37  N.  E.  Rep.  (111.).  937. 

"•Fluker  vs.  Georgia  R.  &  Banking  Co.,  81  Ga.,  461;  2  L.  R.  A.,  843. 

"'Hendrix  vs.  State,  50  Ala.,  148. 

1W3  Blackstone,  4. 


EASEMENTS   AND   LICENSES.  421 

If  a  license  is  revocable,  it  will  be  revoked  by  any  conduct 
on  the  part  of  the  licensor  inconsistent  with  the  exercise  of 
the  license. 

Thus,  a  deed  by  the  licensor  of  the  property  upon  which  the 
license  is  given,  the  death  of  the  licensor,  or  any  act  on  his 
part  which  would  prevent  him,  the  licensee,  doing  the  act  in 
question,  amount  to  a  revocation  of  the  license.161 

181Eckerson  vs.  Crippen,  110  N.  Y.,  585;  1  L.  R.  A.,  487. 
Hodgkins  vs.  Farriiigton,  150  Mass.,  19;  5  L.  R.  A.,  209. 


PART  III. 


CHAPTER  1. 


TITLE  TO  REAL  PROPERTY. 

TITLE  TO  REAL  PROPERTY  IS  THE  LEGAL  AUTHORITY 
FOR  ITS  POSSESSION  AND  ENJOYMENT,  RESTING  ON  LAW 
AND  FACT. 

We  have  seen  that  the  lawful  possession  of  land  is  essen- 
tially the  right  to  exclude  others  from  that  land.  Now,  the 
title  to  that  land,  on  which  the  right  of  exclusion  depends,  con- 
sists in  a  conformity  of  the  facts  in  a  particular  case  to  the 
rules  of  law  which  assign  the  ownership  of  land  to  a  certain 
person.  There  has  been  some  confusion  upon  this  subject 
in  books  whose  authors  did  not  distinguish  between  facts  and 
evidence  by  which  facts  are  established.  As  this  is  a  distinc- 
tion which  the  lawyer  must  always  bear  in  mind  when  he 
comes  to  the  practical  work  of  his  profession,  it  is  deemed 
proper  to  emphasize  it  here.  Some  of  the  writers  say  that  title 
deeds  are  necessary  to  a  perfect  title,  whereas,  in  truth,  title 
dteds  are  only  evidence  of  the  existence  of  a  certain  state  of 
focts,  and,  as  we  shall  see  hereafter,  there  may  be  an  irrefrag- 
ible  title  to  real  estate  in  an  individual,  without  a  scratch  of  a 
pen  recorded,  or  unrecorded,  to  prove  it. 

The  word  law  used  in  the  definition  means  the  code  of  law 
which  prevails  in  the  jurisdiction  where  the  land  is  situated. 
Attention  has  been  drawn  to  this  principle  in  the  first  section 
of  this  book,  but  it  is  now  appropriate  to  formulate  this  prin- 

42-> 


TITLE   TO   REAL   PROPERTY.  423 

ciple  in  one  of  those  maxims  in  which,  the  authors  have  en- 
deavored to  state  the  law  in  brief,  emphatic  paragraphs. 

THE  TITLE  TO  LAND,  OR  ANY  BIGHT  IN  LAND,  MUST  AL- 
WAYS BE  DETERMINED  BY  THE  LAW  OF  THE  STATE  OR 
COUNTRY  WHERE  THE  LAND  IS  SITUATED. 

In  our  law  there  is  a  head  entitled  "Conflict  of  Laws,"  and 
considerable  difficulty  has  been  encountered  in  many  cases  in 
determining  by  which,  of  one,  or  more  conflicting  codes  a  par- 
ticular legal  dispute  is  to  be  adjudicated.  This  is  particularly 
true  with  regard  to  contracts,  to  which  there  are  various  par- 
ties, residing  in  different  states  or  countries,  where  the  con- 
tracts are  made  by  correspondence,  and  are  partly  to  be 
performed  in  one  jurisdiction  and  partly  in  another.  No 
such  difficulty  is  found  in  the  law  of  real  property.  Contracts 
with  regard  to  real  property,  and  inheritance  of  real  property, 
and,  in  fact,  every  possible  dispute  which  can  arise  with  regard 
to  real  property,  must  be  settled  by  the  law  of  the  state,  or 
country  where  the  land  is  situated,  without  regard  to  the  resi- 
dence of  the  parties  interested,  or  where  any  bargain  or  nego- 
tiation with  regard  to  it  was  entered  into,  or  conducted.  Thus 
we  see  that,  given  the  facts,  we  have  only  to  apply  the  "lex 
rei  sitae,"  and  the  correct  result  will  be  attained. 

As,  at  the  time  of  the  publication  of  this  volume,  the  terri- 
torial jurisdiction  of  the  United  States  has  been  extended  to 
"islands  beyond  the  sea,"  it  becomes  necessary  to  state  some 
general  principles  of  law,  which  will  apply  in  all  the  territory 
now  subject  to  our  national  jurisdiction.  Two  general  rules 
will  be  stated  on  this  point. 

WHERE  TITLE  TO  A  FOREIGN  TERRITORY  IS  ACQUIRED 
BY  THE  NATIONAL  GOVERNMENT,  WHETHER  BY  CONQUEST 
OR  PURCHASE,  PRIVATE  OWNERSHIP  OF  LAND,  THEN  EX- 
ISTING, CONTINUES.  THE  GOVERNMENT  ONLY  ACQUIRES 
THE  RIGHT  OF  EMINENT  DOMAIN,  AND  TITLE  TO  THE  LAND 
NOT  THEN  SUBJECT  TO  PRIVATE  OWNERSHIP. 


424  TITLE   TO   REAL   PROPERTY. 

THE  TITLE  TO  ALL  LANDS  WITHIN  THE  TERRITORIAL 
JURISDICTION  OF  A  NATION,  NOT  HAVING  BEEN  LAWFULLY 
ACQUIRED  BY  PRIVATE  PERSONS,  BEFORE  THE  TIME  THE 
NATION  ACQUIRES  TITLE,  VESTS  IN  THE  NATIONAL  GOV- 
ERNMENT, AND  CAN  ONLY  BE  ACQUIRED  FROM  IT. 

N 

Applying  these  principles  to  the  existing  conditions  within 
the  United  States  we  note  that  the  national  government  ac- 
quired the  title  to  the  original  thirteen  colonies  by  a  successful 
rebellion,  or  as  we  call  it,  "The  Revolution"  of  1776.  This  is 
equivalent  to  title  by  conquest,  and  the  rules  above  stated 
apply  as  to  all  the  territory  in  the  United  States  then  domi- 
nated by  Great  Britain.  Afterwards,  the  national  government 
acquired  the  Louisiana  territory  from  France  by  purchase,  and 
the  Florida  territories  from  Spain  in  the  same  manner.  After- 
wards Texas,  having  been  a  free  State  for  ten  years,  was,  on 
her  own  application,  admitted  as  a  State  of  the  Union.  Next 
Alaska  was  acquired  from  Russia  by  purchase.  The  Hawaiian 
Islands  became  subject  to  our  jurisdiction  much  after  the  fash- 
ion of  Texas.  In  the  late  war  with  Spain,  Puerto  Rico  was 
added  to  the  national  territory  by  conquest,  although  in  the 
final  treaty  $20,000,000  were  allowed  to  the  Spanish  govern- 
ment in  the  nature  of  a  compensation,  or,  perhaps,  consolation, 
for  the  losses  which  she  had  sustained  through  the  war.  Tho 
Philippine  Islands,  over  which  Spain  has  claimed  territorial 
sovereignty,  were  also  ceded  to  the  United  States  by  the  treaty 
of  peace  between  Spain  and  the  United  States;  but  whether  our 
title  to  the  islands  shall  finally  rest  upon  purchase  or  conquest 
remains  to  be  decided  at  the  time  this  book  goes  to  press. 
But,  in  any  event,  the  rules  above  stated  apply.  Bearing  in 
mind,  therefore,  the  principles  stated,  it  will  be  readily  seen 
that  all  the  titles  to  land  subject  to  the  jurisdiction  of  the 
United  States  originate  in  conquest  or  grant  from  Great 


TITLE   TO    REAL   PROPERTY.  425 

Britain,  France,  Spain,  Russia,  the  independent  State  of  Texas, 
or  the  government  of  the  Hawaiian  Islands. 

From  this  discussion  it  will  be  seen  that  a  government  may 
acquire  title  to  property  by  conquest,  discovery  and  purchase. 
A  government  may  also  acquire  title  by  eminent  domain  and 
escheat. 

It  remains  now  to  consider  how  the  title  to  real  property 
may  be  acquired  or  lost  by  private  persons. 

HOW  ACQUIRED  BY  PRIVATE  PERSONS. 

Title  to  real  property  may  be  acquired  either  by  operation 
of  law,  or  by  the  acts  of  the  parties.  Title  by  operation  of  law 
includes  only  those  cases  in  which  property  passes  from  an  an- 
cestor to  his  heirs  by  virtue  of  the  laws  of  descent.  Title  by 
act  of  parties  includes  every  other  method  by  which  title  is  ac- 
quired, except  descent.  The  former  method  is  known  as  title 
by  descent,  and  the  latter  as  title  by  purchase. 

TITLE  BY  DESCENT  IS  THE  TITLE  WHEREBY  A  PERSON, 
ON  THE  DEATH  OF  HIS  ANCESTOR,  ACQUIRES  HIS  ANCES- 
TOR'S ESTATE,  AS  AN  HEIR  AT  LAW. 

TITLE  BY  PURCHASE,  IS  WHERE  TITLE  IS  ACQUIRED  BY 
THE  ACTS  OF  THE  PARTIES,  AND  INCLUDES  EVERY  MODE 
OF  ACQUISITION  KNOWN  TO  THE  LAW,  EXCEPT  THAT  BY 
WHICH  AN  HEIR  ON  THE  DEATH  OF  AN  ANCESTOR  BECOMES 
SUBSTITUTED  IN  HIS  PLACE  AS  OWNER,  BY  ACT  OF  THE 
LAW.1 

The  term  "purchase"  in  its  usual  commercial  sense,  means 
"to  buy;''  but  it  will  be  noticed  from  the  above  definition  that, 
in  law%  the  term  has  a  much  broader  meaning.  In  some  cases, 
however,  of  statutory  construction,  the  term  will  be  construed 
in  its  commercial  and  restricted  meaning  when  necessary  to 
carry  out  the  intent  of  the  legislators.2  Title  by  purchase, 

'Wash  Real  Prop.,  316. 

'Stamm  vs.  Bostwick,  122  N.  Y.,  48;  9  L.  R.  A.,  597. 


426  TITLE   TO   REAL   PROPERTY. 

therefore,  includes  the  following  methods  of  acquiring  prop- 
erty: adverse  possession,  estoppel,  alienation  and  devise. 

DESCENT. 

The  necessity  for  some  regulation  as  to  the  disposition  of 
property,  either  real  or  personal,  on  the  death  of  its  owner, 
who  has  not  disposed  of  it,  is  at  once  apparent.  The  absence 
of  such  regulation  would  involve  endless  strife  and  violence 
in  the  struggle  for  the  possession  of  the  property,  and  great  in- 
justice would  be  done  those  persons  who  are  naturally  the  ob- 
jects of  the  deceased's  bounty.  Statutes  have  been  passed  in 
all  the  States,  providing  what  disposition  shall  be  made  of  a 
deceased  person's  property  when  undisposed  of  by  a  valid  will. 
The  provisions  of  these  statutes  are  arbitrary  and  unbending; 
if  the  deceased  did  not  make  a  valid  will,  there  arises  an  abso- 
lute presumption  that  he  intended  that  his  property  should  be 
distributed  or  descend,  according  to  the  provisions  of  the  stat- 
ute; that  is,  the  statute  which  is  in  force  at  the  time  of  the 
death  of  the  intestate,  for  the  rights  of  heirs  then  become 
vested. 

This  is  true,  even  though  the  circumstances  were  such  that 
they  indicated  an  intent  that  the  property  should  pass  in  some 
other  way.  The  only  way  that  the  intent  of  deceased  may 
affect  the  disposition  of  his  property  is  when  it  is  expressed  in 
a  will  executed  in  the  manner  prescribed  by  lawr.  While  the 
statutes  differ  in  many  important  details,  it  is  the  purpose  of 
all  of  them  to  supply  the  want  of  a  will,  and  to  pass  the  prop- 
erty to  those  persons  to  whom  the  ancestor,  if  unprejudiced, 
would  naturally  have  willed  it  if  he  had  made  a  will.  The 
statutes  regulating  the  disposition  of  property  are  of 
two  kinds,  viz.:  statutes  affecting  the  distribution  of  personal 
property,  and  statutes  affecting  the  descent  of  real  property. 


TITLE   TO    REAL   PROPERTY.  42  < 

The  former  are  known  as  "'Statutes  of  Distribution;"  and  the 
latter  as  "Statutes  of  Descent." 

Before  discussing  some  of  the  general  principles  of  descent, 
it  may  be  well  to  call  the  student's  attention  to  the  use  and 
meaning  of  some  of  the  legal  terms  employed  in  connection 
with  this  subject:  By  "heir"  is  meant  the  person  upon  whom 
the  law  casts  the  estate,  immediately  on  the  death  of  the  an- 
cestor. The  term  is  sometimes  applied  not  only  to  those  per- 
sons who  take  the  property  by  law  in  the  absence  of  a  will,  but 
to  the  persons  who  take  under  the  will.3  But  in  absence  of  a 
context  indicating  a  different  intent,  the  term  "heir"  will  be 
construed  in  its  technical  sense  to  designate  the  persons 
who  would  by  statute  succeed  to  the  real  estate  in  case  of  in- 
testacy.4 In  the  case  of  a  will  the  person  taking  realty  under 
it  is  called  a  devisee;  one  taking  personalty  is  called  a  legatee. 

The  term  "ancestor"  means  the  person  from  whom  the  es- 
tate passes,  and  not  a  progenitor,  as  in  popular  acceptation.5 
The  estate  which  descends  from  the  ancestor  to  the  heir  is 
called  an  inheritance.  The  distribution  of  an  estate  has  refer- 
ence to  the  division  by  the  administrator,  after  the  payment  of 
debts  and  legacies,  amongst  the  heirs.  Land  is  not  "dis- 
tributed," but  in  absence  of  a  will  it  is  said  to  descend  to  the 
heirs  without  the  intervention  of  an  administrator.6  When 
the  property  descends  to  all  heirs  of  the  same  degree  of  rela- 
tionship to  the  ancestor  equally  and  in  their  own  right,  they 
are  said  to  take  per  capita.  When  the  heirs  are  not  of  the 
same  degree  of  relationship  to  the  ancestor,  and  do  not  take 
equally,  they  are  said  to  take  by  representation,  or  per  stirpes. 

3In  many  cases  the  term  "heir"  in  wills  has  been  construed  to  mean 
children  or  widow. 

4Clarke  vs.  Cordis,  4  Allen,  466. 
'Bailey  vs.  Bailey,  25  Mich.,  185-188. 
•Beard  vs.  Lofton,  102  Ind.,  408. 


428  TITLE   TO   REAL   PROPERTY. 

That  is,  in  those  instances  in  which  the  heirs  of  a  deceased 
person,  who  would  have  inherited  property  if  he  had  lived, 
stand  in  his  place  and  take  his  share,  they  are  said  to  take  by 
representation,  or  per  stirpes.  Thus,  if  the  ancestor  had  two 
sons,  one  of  whom  was  dead  at  the  time  of  his  decease,  the  chil- 
dren of  the  deceased  son  take  by  representation  the  share  which 
he  would  have  taken  had  he  survived  his  father.  In  determining 
who  are  the  heirs  under  the  statutes,  it  is  often  necessary  to 
determine  the  nature  and  degree  of  the  relationship  of  the 
parties  to  the  ancestor.  The  heirs  may  be  related  to  the  ances- 
tor either  by  consanguinity,  affinity  or  by  adoption. 

Consanguinity  is  the  connection  or  relation  by  blood  of  per- 
sons descended  from  the  same  common  ancestor;  it  is  the 
having  the  blood  of  the  same  common  ancestor.  Consanguinity 
may  be  of  two  kinds — lineal  and  collateral.  Lineal  consanguin- 
ity exists  between  persons,  wThen  one  is  descended  from  the 
other,  as  father  and  son,  or  grandfather  and  grandson.  Col- 
lateral consanguinity  or  relationship  exists  between  persons 
who  are  descended  from  the  same  common  ancestor,  but  not 
one  from  the  other,  as  a  brother  and  sister,  uncle  and  nephew.7 
Affinity  is  a  relationship  arising  out  of  marriage,  and  not 
out  of  blood,  and  exists  between  a  husband  and  his  wife,  and 
between  the  husband  and  the  blood  relatives  of  the  wife,  and 
between  the  wife  and  the  blood  relatives  of  the  husband. 

Adoption  is  the  act  by  which  the  relations  of  paternity  and 
affiliation  are  recognized  as  legally  existing  between  persons 
not  so  related  by  nature.8  It  sometimes  becomes  necessary 
under  the  statute  of  descent  and  other  statutes,  to  determine 
the  nearness  of  the  collateral  blood  relationship  of  one  claim- 

'2  Blk.  Com..  203. 

•Morrison  vs.  Sessions  Estate,  70  Mich.,  297. 


TITLE   TO   REAL   PROPERTY.  429 

ing  as  next  of  kin  to  the  ancestor.  The  line  of  descent  from 
the  ancestor  is  marked  by  degrees,  and  each  generation  consti- 
tutes one  degree.  The  degree  indicates  the  distance  between 
those  who  are  allied  by  blood.9 

In  the  United  States  the  method  adopted  to  determine  the 
degree  of  relationship,  is  that  of  the  civil  law,  as  distinguished 
from  the  common  or  canon  law  method.  By  the  civil  rule  the 
degrees  are  computed  by  adding  together  the  number  of  de- 
grees there  are  between  each  of  the  two  persons  whose  rela- 
tionship is  to  be  ascertained,  and  the  common  ancestor.10  That 
is,  the  computation  commences  with  the  deceased,  and  ascends 
to  the  common  ancestor,  and  descends  to  the  person  desired, 
and  each  person  in  this  ascent  and  descent  marks  a  degree. 
Thus,  in  computing  the  relationship  of  brothers,  their 
father  being  their  common  ancestor,  marks  the  first  degree, 
and  the  descent  to  the  other  brother  marks  the  second  degree 
which  is  the  degree  of  relationship. 

So,  an  uncle  and  nephew  are  related  in  the  third  degree.  In 
the  direct  line,  a  father  stands  related  in  the  first  degree,  and  a 
grandfather  in  the  second  degree.  By  the  canon  or  common 
law  rule,  the  computation  commences  with  the  common  ances- 
tor and  reckons  downward,  and  the  degree  in  which  the  two 
persons,  or  the  most  remote  of  them,  is  remote  from  the  an- 
cestor, marks  the  degree  of  relationship.11  In  comput- 
ing the  relationship  of  an  ancestor  to  one  directly 
descended  from  him,  the  two  rules  work  the  same  result;  but 
in  case  of  collateral  relationship  the  result  is  different. 

Thus,  under  the  common  law  or  canon  rule,  a  brother  stands 
in  the  first  degree,  and  is  in  the  same  degree  as  the  father  him- 

•Bouvier's  Law  Dictionary. 
102  Wash,  on  Rear  Prop.,  406. 
112Blk.  Com.,  206. 


430  TITLE   TO   REAL   PROPERTY. 

self;  first  cousins  are  related  in  the  second  degree,  instead  of 
the  fourth,  as  by  the  civil  rule.  In  many  of  the  States,  the  stat- 
utes of  descent  have  classified  heirs  by  a  designation  of  rela- 
tionship, instead  of  computation  by  degrees  of  kinship.  In 
these  States  it  is  only  when  no  persons  are  found  answering  to 
the  designated  relationship  that  resort  is  had  to  the  computa- 
tion by  degrees.12  With  this  introduction  we  may  now  briefly 
discuss  a  few  of  the  general  principles  of  descent,  the  person 
who  takes  by  descent,  and  what  property  descends. 

PRINCIPLES  OF  DESCENT. 

The  common  law  regulated  the  descent  of  real  property. 
Originally,  the  common  law  rules  provided  that  real  property 
should  only  descend  to  the  lineal  descendants  of  the  ancestor. 
Subsequently  these  rules  were  extended  to  collateral  relatives, 
and,  in  process  of  time,  they  covered  every  condition  which 
could  possibly  exist.  These  rules  of  descent  continued  in  force 
for  many  years,  and  were  reduced  to  a  series  of  canons  by  Lord 
Holt.  While  these  canons  are  not  in  force  to-day,  yet  they 
have  had  a  distinct  effect  upon  the  present  laws  of  descent,  and 
a  knowledge  of  the  common  law  in  this  respect  will  undoubt- 
edly assist  the  student  in  understanding  and  interpreting  the 
statutes  of  descent. 

It  sometimes  happens  that  the  statutes  omit  to  regulate  de- 
scent in  cases  of  remote  relationships,  and  in  such  instances  in 
many  States  the  common  law  is  still  applicable,  and  will  be 
resorted  to  in  order  to  determine  who  takes  the  property.13 

The  canons  are  stated  by  Blackstone  as  follows: 

1.  "Inheritance  shall  lineally  descend  to  the  issue  of  the 
person  who  last  died  actually  seized,  in  infinitum,  but  shall 
never  lineally  ascend." 

"Rowley  vs.  Stray.  32  Mich..  70. 
"Hunt  vs.  Kingston,  23  N  .Y.  Supp.,  352. 


TITLE   TO   REAL   PROPERTY.  431 

This  rule  prevented  the  parents  from  inheriting  from  their 
children.  In  all  of  the  States  a  parent  or  parents,  under  cer- 
tain circumstances,  inherit  from  their  children. 

In  many  of  the  States,  on  the  failure  of  lineal  descendants, 
a  portion  of  the  deceased's  real  estate  goes  to  the  parents,  and 
the  balance  to  his  brothers  and  sisters;  and,  in  some  States,  the 
parents  take,  to  the  exclusion  of  the  brothers  and  sisters. 

2.  'The  male  issue  shall  be  admitted  before  the  female." 
The  reason  for  this  rule  grew  out  of  the  feudal  system ;  since 

by  that  system  the  females,  not  being  able  to  render  military 
service,  could  not  succeed  to  a  feud.1* 

In  the  United  States  this  canon  has  not  been  adopted,  and 
the  male  and  female  heirs  inherit  equally.  The  only  sem- 
blance to  this  rule  is  that  in  some  States  the  father  is  pre- 
ferred to  the  mother. 

And  it  was  held  in  New  York  that  In  absence  of  a  statutory 
provision,  the  common  law  rule  prevailed  and  that  a  great 
uncle  would  take,  to  the  exclusion  of  a  grand  aunt.15 

3.  "Where  there  are  two  or  more  males,  in  equal  degree, 
the  eldest  only  shall  inherit;  but  the  females  all  together." 

This  rule,  commonly  known  as  the  law  of  primogeniture, 
also  grew  out  of  the  feudal  system,  and  its  object  was  to  pre- 
serve the  feud  so  that  its  owner  might  be  competent  to  render 
effective  military  service.  The  condition  under  which  the  rule 
arose  having  ceased,  it  has  been  abolished  in  all  the  United 
States;  and  all  the  children  inherit  equally. 

In  England  the  rule  is  still  in  force  and  is  said  to  be  pre- 
served to  prevent  too  great  subdivision  of  real  property;  but 
the  true  reason  of  the  preservation  of  this  rule,  after  the  de- 


"Williams  Real  Property,  102. 

15Hunt  vs.  Kingston,  23  N.  Y.  Supp.,  352. 


432  TITLE   TO   REAL   PROPERTY. 

dine  of  the  conditions  out  of  which  it  grew,  is  that  it  is  con- 
ducive to  the  maintenance  of  an  aristocracy.17 

4.  "The  lineal  descendants  of  any  person  deceased,  shall 
represent  their  ancestor,  that  is,  shall  stand  in  the  same  place 
as  the  person  himself  would  have  done  had  he  been  living." 

Under  this  rule  and  the  preceding  one,  the  children  of  a 
deceased  eldest  son,  at  common  law  would  have  priority  over 
the  other  children  of  the  ancestor.  At  the  common  law,  all 
lineal  descendants  took  by  right  of  representation.  It  is  im- 
possible to  state  any  general  rule  on  this  subject  in  the  United 
States. 

In  most  of  the  States  the  descendants  will  take  per  capita 
Avhen  they  are  related  to  the  ancestor  in  the  same  degree,  and 
per  stirpes  or  by  representation,  when  related  in  different  de- 
grees.18 At  1he  common  law  this  canon  was  applied  to  col- 
lateral relatives;  but  in  most  States  the  rule  so  far  as  collateral 
inheritance  is  concerned,19  is  limited  to  the  children  of  brother 
and  sister.20 

5.  "On  failure  of  lineal  descendants  or  issue  of  the  person 

""The  dominant  principles  in  the  British  Constitution  have  always 
been  monarchical  and  aristocratic.  These  canons  tend  to  prevent  the 
diffusion  of  landed  property,  and  to  promote  its  accumulation  in  the 
hands  of  the  few.  They  thus  conserve  the  splendor  of  the  nobility  and 
the  influence  of  the  leading  families,  and  rank  and  wealth  are  the  line- 
mark  of  the  throne.  *  *  Power  is  ever  anxious  to  perpetuate  itself, 
and  the  privileged  classes  cling  to  these  rules  of  descent." 
Bates  vs.  Brown,  5  Wall.,  U.  S.,  710. 

"In  Michigan,  for  instance,  the  statute  of  descent  provides  that 
the  estate  of  the  intestate  shall  descend  as  follows:  "In  equal  shares  to 
his  children  and  to  the  issue  of  any  deceased  child  by  right  of  represen- 
tation; and  if  there  be  no  child  of  the  intestate  living  at  his  death,  his 
estate  shall  descend  to  all  his  other  lineal  descendants;  and  if  all  of  the 
said  descendants  are  in  the  same  degree  of  kindred,  they  shall  share  the 
estate  equally,  otherwise  they  shall  take  according  to  the  right  of  rep- 
resentation." 

'•Howell's  Statutes,  5772a. 

'"See  Statute  in  Alabama,  California.  Connecticut,  Georgia,  Maine. 
Massachusetts,  Mississippi,  Michigan,  Minnesota,  Maryland,  New  Jer- 
sey, New  Hampshire,  Oregon,  South  Carolina,  Tennessee,  Vermont  and 
Wisconsin. 


TITLE   TO   REAL   PROPERTY.  433 

last  seised,  the  inheritance  shall  descend  to  his  collateral  rela- 
tions, being  of  the  blood  of  the  first  purchaser;  subject  to  the 
three  preceding  rules." 

For  the  purpose  of  collateral  inheritance,  the  common  law 
divided  estates  into  two  kinds,  viz.:  ancestral  estates  and  ac- 
quired estates.  The  former  included  those  estates  which  the 
intestate  received  by  descent;  and  the  latter,  those  estates  ac- 
quired by  the  intestate  by  purchase. 

In  case  the  intestate  was  seised  of  an  ancestral  estate,  upoa 
a  failure  of  issue  it  descended  to  the  blood  of  the  first  pur- 
chaser; that  is,  the  land  reverted  back  to  the  heirs  of  the  body 
of  that  ancestor  from  whom  the  intestate  derived  his  estate. 

Blackstone  illustrates  the  application  of  this  rule  as  follows: 
"If  land  comes  to  John  Stiles  by  descent  from  his  mother,  Lucy 
leaker,  no  relation  of  his  father  as  such  shall  ever  be  heir  to 
these  lands;  and  vice  versa,  if  they  descended  from  his  father, 
Geoffrey  Stiles,  no  relation  of  his  mother  as  such  shall  ever 
be  admitted  thereto,  for  his  father's  kindred  have  none  of  his 
mother's  blood,  nor  have  his  mother's  relations  any  share  of  his 
father's  blood.''21 

In  most  of  the  States  no  distinction  is  made  between  an- 
cestral and  acquired  estates.  In  some  States  the  statutes  pro- 
vide that  property  shall  descend  to  those  who  are  of  the  blood 
of  the  ancestor,  through  whom  the  property  came.22 

The  wife  not  being  of  the  same  blood  as  her  husband, 
« ould  not  at  the  common  law  inherit  from  him ;  for  the  relation- 
ship by  affinity  did  not  give  her  inheritable  blood.  In  many 
of  the  States  the  wife  may  not  inherit  a  portion  of  the  hus- 
band's estate.  Thus,  in  some  States,  on  failure  of  lineal  de- 

a2  Blk.  Com.,  223. 

-'MeWilliams  vs.  Ross,  40  Pa.  St.,  3G9. 

See  Indiana.  Maryland,  North  Carolina,  Ohio,  Pennsylvania.  Rhode 
Island,  Now  York  statutes. 


434  TITLE   TO    REAL,   PROPERTY. 

scendants,  the  real  property  of  a  husband  dying  intestate  will 
be  divided  between  the  wife  and  his  parents. 

From  these  considerations  we  may  summarize  the  following 
statements  of  the  law  of  descent  in  the  United  States. 

1.  Realty  descends  to  the  lineal  descendants  of  the  intes- 
tate. 

2.  Lineal  descendants,  as  a  general  rule,  share  per  capita 
when  they  are  in  equal  degrees  of  relationship  to  ancestor,  and 
per  stirpes,  if  they  are  related  in  different  degrees. 

3.  On  failure  of  lineal  descendants,  if  the  deceased  leaves 
a  widow,  she  is  now  generally  entitled  to  a  share  of  the  estate. 

4.  On  failure  of  lineal  descendants  the  estate  of  an  intes- 
tate in  most  States  lineally  ascends  to  the  father  or  the  mother, 
or  to  both  the  father  and  mother,  subject  to  the  claims  of  the 
widow.    In  some  States  the  brothers  and  sisters  share  with  the 
father  and  mother. 

5.  On  failure  of  lineal  descendants, -father  and  mother  and 
widow,  the  intestate's  estate,  as  a  general  rule,  passes  to  the 
brothers  and  sisters,  and  to  the  children  of  deceased  brothers 
and  sisters,  by  right  of  representation. 

G.  On  failure  of  lineal  descendants,  father,  mother,  widow, 
brothers  and  sisters,  or  children,  an  intestate's  estate  descends 
to  his  next  of  kin  in  equal  degrees. 

7.     On  failure  of  kindred,  the  estate  escheats  to  the  State. 

These  statements  merely  indicate  the  general  course  of 
descent  in  the  United  States.  |  We  have  not  attempted  to  state 
the  law  of  any  particular  State,  but  only  those  rules  of  descent 
which  are  adopted  by  many  of  the  statutes,  and  for  the  pur- 
pose of  indicating  in  what  way  the  statutes  of  the  various 
States  generally  differ  from  the  common  law  rules. 

For  further  details  the  student  must  consult  the  statutes 
of  his  own  State. 


TITLE   TO   REAL   PROPERTY.  435 

WHO  MAY  INHERIT? 

RELATIONS  OF  THE  HALF  BLOOD. 

At  the  common  law,  property  descended  only  to  relatives  of 
the  whole  blood.  This  rule  is  an  auxiliary  to  the  rule  that  the 
estate  shall  descend  to  the  blood  of  the  first  purchaser.  A  rel 
ative  of  the  whole  blood  is  one  who  is  descended  not  only  from 
the  same  ancestor,  but  from  the  same  couple  of  ancestors.  A 
relative  of  the  half  blood  is  one  who  has  but  one  ancestor  in 
common  with  the  intestate. 

Thus,  at  common  law,  if  A  married  B  and  had  a  son  C,  and 
if  after  B's  death  A  married  D  and  had  a  son  E,  then  in  the 
event  of  C  dying  intestate,  and  without  lineal  descendants,  his 
estate  would  not  descend  to  E ;  and  this  was  true  even  though 
C  had  no  other  heirs.  The  common  law  rule  does  not  prevail 
in  any  of  the  United  States.  There  is  a  considerable  variance 
in  the  statutes  on  this  subject.  In  son^  States  the  half  blood 
relatives  take  equally  with  those  of  the  whole  blood  ;23  in  other 
States  the  whole  blood  is  given  a  preference;  and  in  most  States 
by  statute  the  half-blood  may  not  inherit  property  when  they 
are  not  of  the  same  blood  as  the  ancestral  purchaser;24  and  in 
some  States  they  may  inherit  from  each  other  only  the  prop 
erty  received  from  a  common  ancestor. 

POSTHUMOUS  CHILDREN. 

At  the  common  law,  children  not  in  being  at  the  time  of 
the  ancestor's  death,  could  not  inherit  from  him.  A  child  in 
ventre  sa  mere,  was  not  regarded  as  in  being  and  if  subse- 
quently born  alive,  was  not  permitted  to  inherit.  This  rule  has 
been  changed  by  statute  in  all  States,  and  any  child  born 
within  the  period  of  gestation  after  the  husband's  death,  will 
inherit  in  the  same  way  as  if  in  being  at  his  death.  In  some 

a  Anderson  vs.  Bell.  140  Ind.,  375;  29  L.  R.  A.,  541. 
"Ryan  vs.  Andrews.  21  Mich..  229. 


436  TITLE   TO   REAL   PROPERTY. 

States  the  statutes  provide  that  the  child  must  be  born  within 
ten  months  after  the  intestate's  death. 

ILLEGITIMATE  CHILDREN. 

Aii  illegitimate  child,  or  bastard,  is  one  born  out  of  lawful 
wedlock.  At  the  common  law  a  bastard  was  nobody's  son,  and 
did  not  have  any  inheritable  blood.  A  bastard,  therefore,  could 
not  inherit  from  anyone,  and  was  incapable  of  having  heirs, 
except  the  direct  descendants  of  his  or  her  own  body.  This 
(rule  has  been  changed  by  statutes  in  all  States.  In  most 
States  the  statutes  permit  an  illegitimate  child  to  inherit  from 
the  mother.25 

But  in  most  of  the  States,  while  the  child  may  inherit  from 
ihe  mother,  he  or  she  cannot,  as  a  representative  of  the  mother, 
claim  any  part  of  the  estate  of  her  kindred,  either  lineal  or  col- 
lateral. In  other  States,  bastards  may  inherit  from  the 
mother's  kindred.26  If  the  child  is  born  during  lawful  wedlock, 
•  he  presumption  is  that  it  is  legitimate;  and  this  is  true,  even 
though  the  child  is  born  within  the  period  of  gestation  after 
the  marriage.  In  other  words,  it  is  not  necessary  that  issue,  in 
order  to  be  legitimate,  should  be  begotten  and  born  during 
wedlock;  it  is  sufficient  if  the  birth  takes  place  during  wed- 
lock.27 

Thus,  it  was  held  that  this  presumption  of  legitimacy 
existed  in  a  case  where  the  child  was  born  three  months  after 
the  marriage.28  This  presumption  of  legitimacy  may  some- 
times be  rebutted  by  showing  that  the  husband  did  not  have 
access  to  his  wife  at  the  period  of  its  conception;  such  a  show- 
ing from  reasons  of  public  policy  or  morality  cannot  be  made 

"Wallace  vs.  Kimball,  35  Fla.  49,  26  L.  R.  A.,  746. 

Watson  vs.  Lion  Brewing  Co.,  61  Mich.,  595. 
"Gregley  vs.  Jackson.  38  Ark.,  487. 
"Tioga  County  vs.  South  Creek  Tp.,  75  Pa.  St.,  436. 
^Montgomery  vs.  Montgomery,  3  Bab.  Chy.  (N.  Y.),  132. 


TITLE    TO    HEAL    PROPERTY.  437 

by  the  husband,  except  when  he  can  establish  that  he  was 
out  of  the  realm  at  the  time  of  conception,  or,  as  it  was  ex- 
pressed, "beyond  the  four  seas" — "extra  quatuor  maria."  By 
statute  in  many  States,  if  the  child  is  born  out  of  wedlock, 
it  will  be  legitimatized  by  the  subsequent  marriage  of  its 
parents.20  And  in  some  States  by  statute,  if  without  marriage 
the  father  acknowledges  in  the  manner  prescribed  by  the 
statute,  the  child  as  his,  such  child  shall  be  considered  legiti- 
mate. An  illegitimate  child  is  capable  of  taking  property  by 
devise,  and  if  properly  described,  will  take  under  any  valid 
will. 

ADOPTED  CHILDREN. 

In  most  of  the  States  statutes  have  been  passed  permitting 
the  adoption  of  children.  These  statutes  provide  in  most 
instances,  that  on  compliance  with  the  terms  of  the  act,  the 
child  adopted  shall  inherit  in  the  same  way  as  a  natural  child.30 
This  right  of  adoption  did  not  exist  at  the  common  law, 
iind  it  is  only  by  virtue  of  the  statutes  that  an  adoption  may 
take  place,  and  the  rights  of  the  child  adopted  are  regulated 
11  nd  fixed  by  the  statute  under  which  the  adoption  is  made. 
Tims,  it  was  held  under  a  statute  permitting  the  adopted  child 
to  inherit  as  heir  and  next  of  kin  of  the  adopted  father,  that 
the  adopted  child  could  not  take  as  the  heir  or  next  of  kin  of 
the  children  of  the  adopting  parent.31 

Adoption  being  contrary  to  the  common  law,  it  has  been 
held  in  a  number  of  States  that  the  statute  must  be  strictly 
construed,  and  that  all  its  conditions  must  be  substantially 
complied  with  in  order  that  the  adoption  may  be  valid.32 

"Dayton  vs.  Adkisson,  45  N.  J.  Eq.,  603;  L.  R.  A.,  488. 
'"Furgeson  vs.  Jones,  17  Or.,  204;  3  L.  R.  A.,  620. 
Gray  vs.  Holmes,  57  Kans..  217;  33  L.  R.  A..  207. 
"Helms  vs.  Elliott,  89  Tenn.,  446;  10  L.  R.  A.,  535. 
"Furguson  vs.  Jones,  17  Or.,  204;  3  L.  R.  A.,  620. 


438  TITLE   TO   REAL   PROPERTY. 

If  the  essentials  required  by  the  statute  are  complied  with, 
the  child  will  inherit  from  the  adopting  parent,  in  the  state  in 
which  the  adoption  takes  place.  The  rights  of  the  adopted 
child  to  inherit  has  been  recognized  in  States  other  than  the 
one  in  which  the  adoption  took  place. 

Thus,  it  was  held  in  Kansas  that  a  child  adopted  under  the 
statutes  of  Missouri,  inherited  the  lands  of  the  deceased  adopt- 
ing parent  in  Kansas  on  the  same  terms  as  a  natural  child,  not- 
withstanding the  fact  that  the  method  of  adoption  did  not 
comply  with  the  Kansas  statutes.33  A  contrary  rule  prevails 
in  some  States. 

ALIENS. 

An  alien  is  a  subject  or  citizen  of  a  foreign  State. 

At  the  common  law  an  alien,  as  against  all  persons,  could 
take  real  property  by  an  act  of  purchase;  but  he  could  not  take 
by  descent.  And  at  the  common  law  the  estate  of  an  intestate 
alien  did  not  descend  to  his  heirs.  In  some  States  the 
common  law  disability  has  been  completely  removed,  and  resi- 
dent or  non-resident  aliens  have  the  same  property  rights  as 
citizens.  In  other  States  a  resident  alien  may  purchase  and 
hold  real  property,  and  in  the  event  of  his  death  intestate,  it 
will  pass  to  his  heirs,  even  though  they  are  aliens.36  In  other 
States,  the  alien,  on  declaring  his  intention  to  become  a  citizen, 
may  hold  real  property  in  the  same  way  as  a  citizen. 

MURDERERS. 

A  murderer  cannot  take  either  as  an  heir,  or  devisee,  from 
one  whom  he  has  murdered  for  the  purpose  of  obtaining  his 

"Gray  vs.  Holmes,  57  Kans.,  217;  33  L.  R.  A.,  207. 
"'Stamm  vs.  Bostwick,  122  N.  Y.,  48;  9  L.  R.  A..  597. 


TITLE   TO    REAL   PROPERTY.  439 

estate.87    In  one  case  it  was  held  that  a  bona  fide  purchaser 
from  such  a  murderer  did  not  acquire  a  good  title.38 

GENERAL  PRINCIPLES. 

There  are  a  few  general  principles  which  ought  to  be  called 
to  the  student's  attention. 

THE  TITLE  TO  HEAL  ESTATE  ON  THE  DEATH  OF  THE 
LAST  OWNER  INTESTATE  PASSES  TO,  AND  VESTS  IN,  HIS 
HEIRS  THE  MOMENT  OF  HIS  DECEASE. 

This  rule  has  been  already  commented  upon.  The  title  to 
personal  property  passes  to  the  administrator.  That  is,  the 
administrator,  on  his  appointment  and  qualification  as  admin- 
istrator, becomes  the  owner  of  the  personalty,  and  although 
appointed  some  time  after  the  death  of  the  owner,  his  title 
relates  back  to  that  time.  The  ownership  of  the  heirs  of  the 
realty  is  only  subject  to  this  limitation,  that  it  is  subject  to 
the  payment  of  the  debts  of  the  deceased,  after  the  personalty 
has  been  exhausted.  If  the  personalty  of  the  estate  is  not 
sufficient  to  pay  the  debts,  the  realty  may  be  sold  for  that 
purpose,  in  the  method  prescribed  by  statute. 

REAL  PROPERTY  DESCENDS  ACCORDING  TO  THE  LAW  OF 
THE  PLACE  IN  WHICH  IT  IS  SITUATED,  OR,  AS  OFTEN  STAT- 
ED, THE  DESCENT  OF  REALTY  IS  GOVERNED  BY  THE  LEX 
REI  SITAE. 

In  this  respect,  the  law  of  realty  differs  from  that  relating 
TO  personalty;  for  the  distribution  of  the  latter  is  governed  by 
the  law  of  the  domicile.  It  follows  that  no  person  can  take  by 
descent,  except  those  who  are  recognized  as  legitimate  heirs  by 
the  law  of  the  country  or  state  in  which  the  property  is  situate. 

Thus,  it  was  held  in  Florida  that  an  illegitimate  child 
which  had  been  legitimatized  in  another  State,  could  not 
inherit;  since  the  statute  of  Georgia,  under  which  it  was  legiti- 

"Riggs  vs.  Palmer,  115  N.  Y.,  506;  5  L.  R.  A.,  340. 
"Shellenberger  vs.  Ransom  31  Neb.,  61;  10  L.  R.  A.,  810. 


440  TITLE  TO    REAL   PROPERTY. 

inatized,  did  not  prevail  in  Florida,  and  the  right  of  the  suc- 
cessor must  be  governed  by  lex  loci  rei  sitae.39 

So  it  was  held  in  Kentucky  that  the  children  of  a  marriage 
Toid  in  Illinois  might  inherit  land  in  Kentucky  under  the 
statute  of  that  State,  which  made  legitimate  the  children  of  an 
illegal  or  void  marriage.40 

REALTY  DESCENDS  ACCORDING  TO  THE  TERMS  OF  THE 
STATUTE  IN  FORCE  AT  THE  TIME  OF  THE  INTESTATE'S 
DEATH. 

Amendments  of  the  statute  of  descent  subsequent  to  the 
death  of  the  intestate  cannot  affect  the  rights  of  heirs  at  the 
time  of  his  death. 

NO  ONE  IS  HEIR  TO  THE  LIVING. 

Those  persons  who  would  inherit  under  the  laws  of  descent, 
if  the  owner  were  to  die  intestate,  are  sometimes  described  as 
heirs  apparent.  Such  persons,  however,  during  the  life  of  the 
owner  have  no  interest  in  the  property.  An  amendment  during 
the  life  of  the  owner  in  the  statute  of  descent  does  not  affect 
any  vested  interest  in  realty,  but  is  effectual  to  change  the 
course  of  descent. 

ADVANCEMENTS. 

AN  ADVANCEMENT  IS  A  GIFT  BY  A  PARENT  TO  HIS 
PRESUMPTIVE  HEIR,  IN  ANTICIPATION  IN  WHOLE,  OR  IN 
PART  OF  WHAT  HE  MIGHT  INHERIT  ON  THE  DEATH  OF  THE 
PARENT  INTESTATE.41 

In  order  that  a  gift  may  be  an  advancement,  it  must  have 
the  following  essentials: 

1.  The  property  given  must  be  "a  part  of  the  ancestor's 
estate  which  upon  his  death  would  descend  to  his  heirs,  but  for 
the  fact  that  it  has,  by  the  act  of  the  ancestor,  in  making  the 

•"Williams  vs.  Kiinball,  35  Fla.,  49;  26  L.  R.  A.,  746. 
•Leonard  vs.  Braswell,  99  Ky.,  528;  36  L.  R.  A.,  707. 
>      *K3awthon  vs.  Coppedge,  1  Swan,  Term.,  487. 


TITLE   TO   REAL   PROPERTY.  441 

gift,  been  separated  from  or  taken  out  of  his  estate,  or  it  must 
be  something  which  is  purchased  with  the  funds  of  the  father 
in  the  name  of,  and  for  the  benefit  of  the  child."42 

Thus  it  was  held  that  a  conveyance  to  minors,  at  the  request 
of  their  father,  who  purchased  the  property,  constituted  an 
advancement.43 

2.  It  must  have  been  the  intention  of  the  donor,  at  the  time 
of  the  transfer,  that  the  property  should  be  taken,  not  as  a  gift, 
but  as  an  advancement.  The  intention  of  the  donor  may  be 
gathered  from  the  surrounding  circumstances ;  from  the  declar- 
ations of  the  donor  at  time  of  transfer;  and  such  intention 
may,  in  most  States,  be  proved  by  parol.  In  some  States  the 
statutes  provide  that  the  intention  that  the  gift  shall  consti- 
tute an  advancement,  must  be  evidenced  in  the  writing  trans- 
ferring the  property,  or  an  acknowledgment  in  writing  by  the 
donee.4* 

If  the  amount  of  the  advancement  exceeds  the  share  the 
donee  would  be  entitled  to,  if  no  advancement  had  been  made, 
he  will  be  excluded  from  any  further  portion  in  the  division 
or  distribution  of  the  estate;  but  if  the  amount  received  is  less 
than  his  share  of  the  estate,  he  will  be  entitled  to  as  much  more 
as  will  give  him  his  full  share.  Advancements  may  be  made 
of  either  real  or  personal  property. 

TITLE  BY  ADVERSE  POSSESSION. 

When  land  has  once  been  the  subject  of  private  (as  distin- 
guished from  governmental)  ownership,  title  may  be  acquired 
by  one  who  is  a  stranger  to  the  title  derived  from  the  govern- 
ment, by  adverse  possession.  Title  to  lands  to  which  the  gor- 

"Rickenbacker  vs.  Zimmerman,  10  S.  C.,  110. 

"Rhea  vs.  Bagley,  63  Ark.,  374;  36  L.  R.  A.,  86. 

"This  is  the  rule  in  Michigan,  Massachusetts,  Maine  and  Vermont. 


442  TITLE   TO   REAL   PROPERTY. 

eminent    has  never    parted    with  its    title,    cannot  be    thus 
acquired.45 

TITLE  BY  ADVERSE  POSSESSION  IS  ACQUIRED  BY  A  POS- 
SESSION WHICH  IS  ACTUAL,  CONTINUOUS,  VISIBLE,  NOTORI- 
OUS, DISTINCT,  HOSTILE  AND  EXCLUSIVE  THROUGHOUT  THE 
PERIOD  OF  TIME  PRESCRIBED  BY  THE  STATUTE  OF  LIMITA- 
TIONS IN  THE  STATE  OR  TERRITORY  IN  WHICH  THE  LAND 
IS  SITUATED.45 

Title  by  adverse  possession  can  only  be  acquired  where 
adverse  possession  has  been  maintained  for  the  period  of  time 
fixed  by  the  Statute  of  Limitations.  Statutes  of  Limitations 
do  not  include  the  government  unless  it  is  expressly  so  pro- 
vided in  the  statute.  Where  this  is  not  the  case,  the  ancient 
maxim  of  our  law,  "nullum  tempus  occurrit  regi,"  still  applies. 
This  maxim  is  paraphrased  by  the  learned  author  of  Broom's 
Legal  Maxims  as  follows:  "Lapse  of  time  does  not  bar  the  right 
of  the  crown."  In  this  country  the  State,  or  the  United  States, 
as  the  case  may  be,  is  the  "crown,"  and,  therefore,  title  to  land 
owned  by  the  State  or  the  National  Government  cannot  be 
acquired  by  adverse  possession,  unless  it  is  expressly  so  pro- 
vided by  statute. 

STATUTES  OF  LIMITATIONS  ARE  STATUTES  WHICH  PRE- 
SCRIBE WITHIN  WHAT  TIME  AN  ACTION  SHALL  BE 
BROUGHT  TO  RECOVER  REAL  OR  PERSONAL  PROPERTY  IN 
THE  POSSESSION  OF  ANOTHER,  OR  DEBT  OR  DAMAGES,  AF- 
TER THE  CONDUCT  OF  THE  PARTY  AGAINST  WHOM  SUIT  IS 
TO  BE  BROUGHT  FIRST  JUSTIFIES  THE  BRINGING  OF  THE 
ACTION. 

The  logical  basis  for  statutes  of  limitations  is  that  in  the 
lapse  of  time  important  evidence  may  be  lost.  Therefore,  it  is 

"But  title  to  land  as  against  the  casement  of  the  public  in  streets 
may  be  thus  acquired. 

Flynn  vs.  Detroit,  93  Mich.,  590. 

"•Taylor  TS.  Horde,  2  Smith's  Lead.  Gas.,  Paldi  vs.  Paldi,  95  Mich., 
410. 


TITLE   TO   REAL   PROPERTY.  443 

for  the  interest  of  the  public,  and  in  the  interest  of  justice,  that 
disputed  questions  of  fact  should  be  tried  as  nearly  as  possible 
to  the  time  when  the  matters  occurred,  out  of  which  the  con- 
troversy grew.  It  is  not  an  unreasonable  proposition  that  one 
who  sits  by  and  sees  his  neighbor  in  the  enjoyment  of  a  valua- 
ble and  profitable  piece  of  land  to  which  he  claims  title  and,  per- 
haps, sees  him  making  improvements  on  it  and  takes  no  steps  to 
assert  his  rights  within  the  time  which  the  law  fixes  as  reason- 
able by  a  statute  of  limitations,  should  thereafter  be  forever  bar- 
red from  laying  claim  to  that  land.  It  may  be  that  he  is  merely 
supine,47  it  may  be  that  he  is  waiting  until  witnesses  who  can 
establish  the  truth  as  to  the  title  are  dead,  and  it  may  be  that 
he  is  waiting  to  reap  the  benefits  of  the  improvements  which,  in 
the  meantime,  his  neighbor  is  making  upon  the  land.48 

Whatever  the  fact  may  be  in  any  particular  case,  it  is  cer- 
tain that  the  statutes  of  limitation  are  deeply  grounded  in 
wisdom  and  a  sound  public  policy,  and  there  is  little  doubt  that 
their  scope  will  be  extended,  rather  than  restricted,  in  the 
future.  In  discussing,  therefore,  the  acquisition  of  the  title  to 
land  by  adverse  possession,  the  reader  is  prepared  for  the  first 
formulated  proposition  involved  in  this  branch  of  the  law. 

NO  TITLE  CAN  BE  ACQUIRED  BY  ADVERSE  POSSESSION 
UNLESS  THE  ADVERSE  POSSESSION  HAS  CONTINUED13  DUR- 
ING THE  TIME  PRESCRIBED  BY  THAT  STATUTE  OF  LIMITA- 
TION WHICH  OBTAINS  IN  THE  TERRITORIAL  JURISDIC- 
TION IN  WHICH  THE  LAND  IS  SITUATED. 

In  the  statement  of  the  above  proposition,  the  word  "con- 
tinued" is  used  "advisedly,"  as  the  legal  phrase  goes. 

47Vigilantibus,  non  dormientibus,  leges  subveniunt.    (The  laws  as- 
sist those  who  are  vigilant,  not  those  who  sleep  over  their  rights). 

Broom  Leg.  Max.  857. 

"Consult  the  section  on  "Title  by  Estoppel." 

<9It  must  always  be  borne  in  mind  that  every  element  of  the  adverse 
possession,  as  it  has  been  defined,  must  be  continuous  as  well  as  the 
possession  itself. 


444  TITLE   TO    REAL   PROPERTY. 

A  lawyer  ought  always  to  use  the  technical  words  of  his 
profession,  for  it  shows  his  quality  and  that  he  has  acquired 
his  knowledge  of  the  law  from  the  correct  sources.  In  the  prop- 
osition, "continued"  is  the  proper  legal  word,  because  it  is  set- 
tled that: 

1.  NO  TITLE  CAN  BE  ACQUIRED  BY  ADVERSE  POSSES- 
SION UNLESS  THE  POSSESSION  IS  CONTINUOUS. 

This  means  that  any  break  in  the  continuity  of  the  posses- 
sion during  the  running  of  the  statute  of  limitations  will 
destroy  any  right  of  obtaining  title  to  real  property  by  adverse 
possession.  Or,  in  other  words,  that  successive,  but  inter- 
rupted, possessions  cannot  be  tacked  or  hitched  together  to 
make  up  the  time  of  the  adverse  possession  required  by  the 
statute  of  limitations.  But  it  does  not  mean  that  continuous 
possession  during  the  time  demanded  by  the  statute  of  limita- 
tions must  be  maintained  by  the  same  person.  It  means  simply 
that  there  must  have  been  a  continuous  possession  during  the 
time  demanded  by  the  statute  by  one  person  and  by  those  who 
succeed  to  whatever  right  he  has  acquired  by  his  possession. 
For  instance,  if  one  holding  land  by  adverse  possession  sells 
out  his  claim  before  the  statute  of  limitations  has  run,  and  his 
vendee  immediately  succeeds  him  in  the  possession  of  the  land, 
there  is  only  one  possession,  which,  being  continued  for  the 
statutory  period,  will  ripen  into  a  title.50  If  the  possession  is 
continuous  for  the  period  required  by  the  statute  of  limitations, 
but  is  by  a  number  of  persons  not  in  privity  of  title,  the  several 
possessions  cannot  be  tacked  so  as  to  give  a  title  by  adverse 
possession.51 

"•Possession  need  not  be  constant  to  make  it  sufficiently  continuous 
to  be  adverse  when  the  property  is  used  from  time  to  time  as  needed. 
Swan  vs.  Munch,  65  Minn.,  500;  35  L.  R.  A.,  743. 
51  Carter  vs.  Chevalier,  108  Ala..  563. 


TITLE    TO    KKAL    PROPERTY.  445 

2.  NO  TITLE  CAN  BE  ACQUIRED  BY  ADVERSE  POSSES- 
SION UNLESS  THE  POSSESSION  IS  ACTUAL. 

In  order  to  constitute  an  adverse  possession,  there  must  be 
an  actual  as  distinguished  from  a  constructive  possession  of 
the  property,  to  which  title  is  claimed.  Before  discussing  the 
law  on  the  subject,  it  is  desirable  to  define  some  of  the  terms 
used  in  the  law  in  this  connection. 

In  that  part  of  the  law  of  real  property  which  deals  with 
titles,  the  words  "Seisin,"  "Seised"  and  "Disseisee"  are  of  fre- 
quent occurrence.  Like  many  other  legal  terms,  these  words 
are  somewhat  indefinite  in  their  meaning1,  because  the  word 
"seisin"  has  been  used  in  various  meanings.  The  way  to  give  a 
clear  idea  of  the  meaning  of  these  words  is  to  start  with  the 
original  signification,  and  then  to  trace  the  secondary,  or  deri- 
vative, meanings. 

THE  PRIMARY  MEANING  OF  THE  WORD  "SEISIN"  IS  THE 
UNION  IN  THE  SAME  PERSON  OF  ACTUAL  POSSESSION  WITH 
A  FREEHOLD  ESTATE. 

THE  SECONDARY  MEANING  OF  THE  WORD  "SEISIN"  IS 
THE  UNION  IN  THE  SAME  PERSON  OF  CONSTRUCTIVE  POS- 
SESSION WITH  A  FREEHOLD  ESTATE. 

THE  THIRD  MEANING  OF  THE  WORD  "SEISIN"  IS  THE 
UNION  IN  THE  SAME  PERSON  OF  ACTUAL  POSSESSION  BY 
ONE  MAKING  A  CLAIM  TO  A  FREEHOLD  ESTATE,  WITH  COL- 
OR OF  TITLE. 

THE  FOURTH  MEANING  WHICH  HAS  BEEN  GIVEN  TO 
THIS  WORD  BY  SOME  COURTS  IS  THE  UNION  OF  ACTUAL 
POSSESSION  WITH  A  CLAIM  OF,  BUT  WITHOUT  COLOR  OF, 
TITLE  IN  THE  SAME  PERSON. 

The  meaning  of  the  word  "possession"  is  sufficiently  ex- 
plained in  another  part  of  this  work.  The  only  thing  that  is 
necessary  here  is  to  explain  what  is  meant  by  constructive  pos- 
session, as  distinguished  from  actual  possession.  All  land  is 
in  the  actual  or  constructive  possession  of  somebody,  using  that 
word  to  include  every  entity,  whether  a  person,  or  a  corpora- 


446  TITLE   TO   HEAL   PROPERTY. 

tion,  or  a  State  or  the  National  Government,  which  has  the 
title  to  land.  Actual  possession  is  simply  possession,  as  that 
has  been  explained. 

CONSTRUCTIVE  POSSESSION  IS  A  POSSESSION  WHICH  IS 
ASCRIBED  BY  THE  LAW  TO  THE  HEAL  OWNER,  WHERE 
THERE  IS  NO  ACTUAL  POSSESSION." 

WHERE  THERE  IS  NO  ACTUAL  POSSESSION,  THE  REAL 
OWNER  HAS  CONSTRUCTIVE  POSSESSION. 

For  instance,  the  real  owner  has  constructive  possession 
of  a  tract  of  wild  land,  although  he  has  never  seen  it  or  done 
any  act  to  assert  his  dominion  over  it.  But, 

THERE  CAN  BE  NO  CONSTRUCTIVE  POSSESSION  WHERE 
THERE  IS  AN  ACTUAL  POSSESSION. 

AN  ACTUAL  POSSESSION,  BY  ONE  WHO  HOLDS  UNDER, 
THAT  IS,  WHO  ACKNOWLEDGES  THE  TITLE  OF  THE  REAL 
OWNER,  AS,  FOR  INSTANCE,  A  TENANT  FOR  YEARS,  IS  THE 
POSSESSION  OF  THE  REAL  OWNER. 

IN  ACQUIRING  TITLE  TO  REAL  PROPERTY  BY  ADVERSE 
POSSESSION,  THE  STATUTE  OF  LIMITATIONS  DOES  NOT  BE- 
GIN TO  RUN  UNTIL  THERE  HAS  BEEN  A  DISSEISIN. 

BY  DISSEISIN  IS  INTENDED  THAT  ONE  CALLED  THE  DIS- 
SEISOR  HAS  SUCCEEDED  IN  OBTAINING  POSSESSION  OF  THE 
LAND  INVOLVED  AND  SUBSTITUTING  HIS  SEISIN  IN  PLACE 
OF  THE  SEISIN  OF  THE  ONE  CALLED  THE  DISSEISEE. 

There  is  one  apparent  exception  to  the  rule  requiring  actual 
possession.  In  denning  seisin,  we  have  distinguished  between 
seisin  where  there  is  color  of  title,  and  where  there  is  no  color 
of  title.  Although  it  has  often  been  said  that  there  is  no  color 
of  title  unless  the  disseisor  has  a  deed  or  record  title  of  some 
nature,  we  are  not  able  to  agree  to  that  proposition.53  In  our 

"Bliss  vs.  Johnson,  94  N.  Y.,  235. 

"Under  this  theory  color  of  title  has  been  defined  as  follows:  "Color 
of  title  professing  to  pass  title  upon  its  face,  but  which,  either  from 
want  of  title  In  the  person  making  it,  or  from  defects  in  the  instru- 
ment, does  not  convey  a  perfect  title,  but  not  so  obviously  imperfect  as 
to  be  apparent  to  one  not  skilled  in  the  law." 
See  Cramer  vs.  Clow,  9  L.  R.  A..  772. 


TITLE   TO   REAL   PROPERTY.  447 

opinion,  one  bona  fide  claiming  to  be  the  heir  of  an  intestate 
has  as  much  color  of  title  as  one  claiming  to  be  the  person  who 
takes  under  the  will  of  a  testator,  or  to  be  the  person  named 
in  a  warranty  deed.54  Therefore,  we  define  color  of  title  as 
follows: 

BY  COLOR  OF  TITLE  IS  MEANT  THAT  WHICH  HAS  THE 
SEMBLANCE  OB  APPEARANCE  OF  TITLE,  BUT  WHICH  IN 
REALITY  IS  NOT  GOOD  OR  EFFECTUAL/5 

THERE  IS  NO  COLOR  OF  TITLE  WHERE  THE  ONE  IN  POS- 
SESSION DOES  NOT  BASE  HIS  CLAIM  TO  OWNERSHIP  UPON 
ANYTHING  BUT  HIS  POSSESSION.06 

The  only  importance  in  this  discussion  with  regard  to  color 
of  title  is  this:  If  there  is  color  of  title  to  a  single  definitely 
ascertainable  piece  or  tract  of  land,  the  disseisor  may  have 
actual  possession  of  a  part  and  constructive  possession  of 
another  part  of  the  same  piece  or  tract,  to  the  extent  that  his 
constructive  possession  may  amount  to  a  disseisin;  but  where 
there  is  no  color  of  title  to  anything  but  that  part  of  the  tract 
actually  occupied,  there  can  be  no  disseisin  beyond  the  limits 
of  the  land  of  which  the  disseisor  is  in  actual  posses- 
sion.67 

"Miller  vs.  Davis,  64  N.  W.  Rep.,  338. 
"Baker  vs.  Swan,  32  Md.,  355. 
"Deffebaek  vs.  Hawke,  115  U.  S.,  392. 

"Stall    v*.    Rich   Patch    Iron    Co.,   92  Va.,  253. 

This  was  an  action  of  ejectment  by  the  Iron  Co.  against  Stull. 
The  Iron  Co.  was  the  legal  owner  of  the  premises  in  controversy, 
his  claim  of  title  extending  back  to  the  commonwealth.  The  defendant 
claimed  title  by  adverse  possession  and  through  one  R.  N.  Weir,  Sr., 
who.  conveyed  the  property  in  question,  one  hundred  and  nineteen  acres, 
to  John  Deed,  Sr.,  in  1834,  and  through  whom  defendant  traced  his  title 
by  an  unbroken  chain;  but  it  did  not  appear  that  Weir  had  any  title 
from  the  commonwealth.  The  grantee  of  Deed  took  possession  and 
cleared  a  few  acres,  claiming  title  to  the  whole  boundary  embraced  in 
his  deed.  Additional  land  was  subsequently  cleared,  so  that  at  a  time 
of  trial  there  were  twenty  acres  of  the  tract  clear  and  under  fence.  The 
defendant  and  his  grantors  occasionally  cut  timber  from  the  uncleared 
portion  of  the  property,  and  it  remained  largely  in  a  state  of  nature. 

T"he  lower  court  held  that  the  adverse  possession  of  defendant  ex- 


448  TITLE   TO   REAL   PROPERTY. 

In  other  words,  when  a  person  enters  into  possession  under 
a  conveyance  or  color  of  title,  he  will  be  deemed  to  have  pos- 
session of  the  entire  property  described  by  his  alleged  title  in 
the  same  parcel,  and  not  in  the  adverse  possession  of  another.58 
But  where  the  person  in  possession  does  not  rely  on  a  color  of 
title  to  support  his  claim  of  title,  but  relies  solely  on  his  naked 
possession,  then  he  is  seised  in  the  law  of  only  that  portion  of 
which  he  ha,s  actual  possession.59  Applying  then  a  principle 
heretofore  stated  to  this  class  of  possession,  we  have  the  follow- 
ing proposition: 

WHEBE  THE  PEBSON  IN  POSSESSION  CLAIMS  TITLE  SOLE- 
LY BY  VIBTUE  OF  SUCH  POSSESSION,  THE  LAW  ADJUDGES 
THE  POSSESSION  OF  ALL  OF  THE  TBACT  TO  BE  IN  THE  LEGAL 
OWNEB,  EXCEPT  SUCH  POBTION  AS  IN  ACTUAL  POSSESSION 
OF  THE  DISSEISOB. 

As  to  what  constitutes  an  actual  possession  must  depend 
upon  the  uses  to  which  the  property  may  be  put,  its  situation, 
and  the  circumstances  of  each  particular  case. 

AN  ACTUAL  POSSESSION  IS  THE  OCCUPATION,  USE  OB 
ENJOYMENT  OF  THE  SUBJECT  MATTEB  OF  THE  CONTBO- 
VEBSY,  BY  BESIDENCE,  CULTIVATION,  IMPBOVEMENT,  OB 
OWNEBSHIP. 

There  may  be  habitual  acts  of  ownership  sufficient  to  con- 


tended to  only  that  portion  Avhich  was  under  fence.  The  Supreme 
Court  reversed  this  ruling  and  held  that  the  defendant's  grantors  and 
the  defendant,  in  building,  clearing  and  enclosing  a  portion  of  the 
property  and  in  claiming  title  to  the  whole  tract  described  in  their  re- 
spective grants,  were  in  possession  of  the  entire  tract  and  not  simply  of 
the  cleared  twenty-three  acres. 

"The  actual  possession  of  one  tract  will  not  amount  to  a  construc- 
tive possession  of  another  distinct  and  separate  tract,  even  though  the 
latter  is  described  in  a  grant  creating  a  color  of  title  in  the  claimant. 
McRoberts  vs.  McArthur,  62  Minn.,  310. 

"Taylor  vs.  Burnsldes.  1.  Grat,  165. 


TITLE   TO   REAL   PROPERTY.  449 

stitute  an  actual  possession,  other  than  a  residence  on  and  a 
cultivation  of  the  property.60 

3.  IN  ORDER  TO  CONSTITUTE  ADVERSE  POSSESSION,  THE 
POSSESSION  OF  THE  DISSEISOR  MUST  BE  HOSTILE  TO  THE 
LEGAL  OWNER. 

The  actual  and  peaceable  possession  of  land  by  one  other 
than  the  owner  does  not  necessarily  make  the  possession 
adverse  to  the  owner.  As  already  stated,  the  possession  of  a 
tenant  for  years  is  the  possession  of  the  landlord  under  whom 
he  holds.  Such  a  possession  confers  no  title  in  the  person  hold- 
ing it,  however  long  continued. 

POSSESSION  HELD  IN  SUBORDINATION  TO  THE  TITLE  OF 
ANOTHER  IS  NOT  HOSTILE. 

Thus  the  possesson  of  a  tenant,  under  his  landlord,  of  a 
mortgagor  or  an  agent  for  his  principal,  or  of  a  life  tenant  as* 
y  gainst  the  remainderman,  will  not  as  long  as  the  relationship 
is  recognized  constitute  an  adverse  holding.  It  is  not  essential 

•"Judge  Baldwin,  in  the  case  of  Taylor  vs.  Burnsides,  1  Grat..  165, 
makes  the  following  clear  statement: 

"Occupation,  use  or  enjoyment,  residence,  cultivation  and  im- 
provement respectively,  while  they  continue,  are  usually  the  most  ob- 
vious and  decisive.  But  there  may  be  other  open,  notorious  and  hab- 
itual acts  of  ownership,  of  quite  equivalent  import  and  effect.  Take,  for 
example,  the  case  of  a  town  resident  who,  claiming  title  to  a  lot  or  tract 
of  woodland  in  the  vicinity,  openly,  notoriously  and  habitually  cuts  and 
hauls  from  it  his  necessary  supplies  of  fuel,  or  in  like  manner  makes  it 
a  source  of  revenue,  by  sales  of  firewood  or  timber;  or  the  case  of  an 
uninclosed  or  unimproved  lot  in  or  near  a  city,  devoted  by  the  professed 
owner  to  his  use  or  profit  as  a  coal  or  lumber  yard,  quarry  or  landing 
place.  There  cannot  be  stronger  instances  of  actual  possession  than, 
these,  and  other  like  cases  which  might  be  stated;  but  they  can  serve 
only  for  the  purpose  of  illustration.  When  we  leave  the  unquestionable 
tests  of  residence,  cultivation  and  improvement,  every  case  must  de- 
pend in  a  great  measure  upon  its  own  circumstances,  and  requires  a 
recurrence  to  the  general  principle,  above  stated  of  open,  notorious  and 
habitual  acts  of  ownership.  That  principle  must,  moreover,  be  guarded 
in  its  application  by  taking  care  not  to  confound  an  adverse  claim  witb 
an  actual  possession,  and  by  distinguishing  between  repeated  tres- 
passes, under  a  pretense  or  even  belief  of  title,  and  the  dominion,  con 
trol  and  enjoyment  of  actual  or  apparent  ownership.  That  an  adverse 
possession  requires  actual  occupancy,  or  what  is  equivalent  to  it, 
\s  sustained  by  an  overwhelming  current  of  American  decisions.'' 


450  TITLE   TO   KEAL   PROPERTY. 

that  the  possession  of  the  disseisor  should  be  hostile  at  the  time 
of  his  original  entry;  for  a  lawful  possession  under  another 
may  be  an  act  of  disseisin  become  adverse.  Thus,  if  one  enter- 
ing under  a  lease,  or  a  contract  of  purchase,  or  by  consent  of 
the  legal  owner,  expressly  repudiates  the  relationship  under 
which  he  entered,  or  if  such  person  acts  in  a  manner  incon- 
sistent with  the  title  of  the  legal  owner,  and  the  owner  has, 
or  ought  to  have,  notice  of  such  acts,  the  possession  becomes 
hostile  and  may  ripen  into  a  title  adverse  to  the  owner. 

So,  the  possession  of  one  co-tenant  may  become  adverse 
after  he  has  actually  ousted  his  co-tenant,  or  has  committed 
acts  which  are  constructively  equivalent  to  an  ouster.61 

It  is  impossible  to  indicate  just  what  actions  are  regarded 
as  hostile  to  the  legal  owner  since  it  is  is  a  question  for  the 
jury  under  the  circumstances  of  each  particular  case. 

AS  A  GENERAL  RULE,  ANY  VISIBLE  OPEN  USE,  WHICH 
AMOUNTS  TO  AN  ACTUAL  APPROPRIATION  OF  THE  LAND 
TO  THE  PERMANENT  AND  EXCLUSIVE  DOMINION  AND 
BENEFIT  OF  THE  DISSEISOR,  IS  A  HOSTILE  POSSESSION.^ 

The  erection  of  buildings  and  other  acts  inconsistent  with 
the  legal  title  of  the  true  owner  have  been  held  to  amount  to  an 
adverse  possession.  To  constitute  adverse  possession,  the  acts 
of  the  disseisor  must  indicate  an  intent  to  permanently  appro- 
priate the  property.  Acts  of  trespass,  or  occasional  acts  of 
ownership,  do  not  constitute  a  possession  that  w^ill  ripen  into 
title.63 

4.  THE  POSSESSION  OF  THE  DISSEISOR  MUST  BE  OPEN, 
VISIBLE  AND  NOTORIOUS. 

In  order  to  constitute  an  adverse  possession,  the  occupation 
of  the  disseisor  must  be  so  open  and  visible  that  the  legal 

"Fenton  vs.  Miller,  94  Mich.,  204. 
"Costello  vs.  Edson,  44  Minn.,  135. 
"Cox  vs.  Ward,  107  N.  C.,  507. 


TITLE    TO    REAL    PROPERTY.  451 

owner  will  have  either  actual  or  constructive  notice,  of  the 
possession  and  claim  of  the  disseisor. 

A  secret  possession,  or  a  possession  of  such  a  character  that 
the  owner  does  not  have  an  actual  or  constructive  notice  that 
an  adverse  and  hostile  claim  is  made  to  his  property,  is  not 
sufficient  to  create  any  right  in  the  disseisor.  Under  any  dif- 
ferent rule  the  legal  owner  might  lose  the  title  to  his  property 
without  an  opportunity  to  protect  his  title. 

The  possession  of  the  disseisor  must  therefore  be  so  visible 
and  open,  that  in  the  event  of  the  true  owner  visiting  the  prop- 
erty, the  nature  and  circumstances  of  the  disseisor's  possession 
would  notify  him  that  such  possession  was  contrary  and  hos- 
tile to  his  legal  title.04  When  the  true  owner  has  actual  notice 
of  an  adverse  possession,  it  is  unnecessary  to  make  any  proof 
that  the  possession  of  the  disseisor  is  notorious.65 

In  the  absence  of  such  proof,  the  claimant  must  show  that 
his  possession  has  been  so  notorious  that  the  owner  by  exer- 
cising reasonable  diligence  would  have  had  notice  of  his 
adverse  claim.  Thus,  for  the  purpose  of  proving  the  notoriety 
of  his  possession,  a  claimant  may  show  that  the  land  has  been 
generally  regarded  as  his  in  the  neighborhood  in  which  it  is 
situated.66 

Once  the  claimant's  possession  becomes  so  open  and  notor- 
ious that  the  legal  owner  is  presumed  to  have  notice  of  its 
adverse  character,  the  statute  of  limitations  will  begin  to  run 

"In  Pike  vs.  Robertson,  79  Mo.,  618,  the  court  says: 
"If  the  owner  visit  his  land,  the  indications  of  adverse  possession 
and  claim  should  be  so  patent  that  he  could  not  be  deceived.  In  this 
case,  if  the  owner  should  have  visited  this  land,  he  might  have  seen 
wood  cut  and  rails  split  and  hauled  off,  pretty  good  indications  of  tres- 
pass; but  he  would  have  seen  no  habitation,  no  enclosures,  no  fields, 
nothing  indeed  to  advise  him  that  an  adverse  claim  was  set  up,  that 
some  one  was  disputing  his  title." 

"Clark  vs.  Gilbert,  39  Conn.,  94. 
"Sparrow  vs.  Hovey,  44  Mich.,  63. 


452  TITLE   TO    REAL   PROPERTY. 

against  him.    To  this  statement  there  is  an  exception  which 
may  be  stated  as  follows: 

STATUTES  OF  LIMITATION  DO  NOT  BUN  AGAINST  THE 
OWNER  OF  AN  ESTATE  IN  EXPECTANCY,  OR,  AGAINST  A 
PERSON  WHO  HAS  NO  IMMEDIATE  RIGHT  TO  BRING  AN 
ACTION  TO  PROTECT  HIS  TITLE.  TITLE  BY  ADVERSE  POS- 
SESSION CAN  ONLY  BE  ACQUIRED  AS  AGAINST  THE  PERSON 
ENTITLED  TO  IMMEDIATE  POSSESSION. 

That  is,  following  the  rules  and  principles  already  laid 
down,  a  title  by  adverse  possession  cannot  be  acquired  as 
against  one  who  has  no  present  right  to  the  possession,  and 
therefore  cannot  bring  an  action  to  vindicate  his  title.  For, 
under  our  system  of  law,  neither  equity  nor  law  listens  to  a 
man  who  can  only  show  to  the  court  that  he  apprehends  that 
at  some  future  time  somebody  will  dispute  his  right.  He  may, 
indeed,  take  testimony  de  bene  esse  to  perpetuate  testimony 
in  case  he  apprehends  that  the  testimony  may  be  lost  before  he 
has  an  opportunity  to  bring  a  suit  to  establish  his  rights.  But 
he  cannot  file  a  bill  to  quiet  his  title,  or  to  establish  his  title, 
until  he  is  actually  in  possession,  and  he  cannot  bring  a  suit 
to  recover  possession  until  he  is  entitled  to  it.  When  either 
of  these  conditions  exists,  he  may  bring  a  suit  in  the  appro- 
priate tribunal,  either  to  establish  his  title  to  the  land,  or  to 
recover  possession  of  it.  For  these  reasons,  if  for  no  other, 
the  statute  of  limitations  does  not  run  against  one  who  has  no 
right  to  immediate  possession.  It  is  evident  that  it  would  be 
a  gross  injustice  to  permit  a  man  to  be  deprived  of  property 
which  the  courts  afford  him  no  opportunity  to  protect.67  One 
of  the  authors  remembers  when,  in  1866,  osne  who  had  been 
actively  engaged  on  the  Confederate  side  in  the  War  of  the 
Rebellion,  was  debarred  from  bringing  a  suit  to  recover  any 
debt,  damages  or  property,  or  in  any  way  to  claim  the  protec- 

"Meacham  vs.  Buntisg,  156  111.,  586;  28  L.  R.  A.,  618. 


TITLE   TO   REAL   PROPERTY.  453 

tion  of  the  government  of  the  country  in  which  he  lived.  The 
impression  produced  by  that  state  of  facts  was  very  painful, 
but  that  temporary  condition  has  long  ceased  to  exist.  But,  at 
least,  it  made  such  an  impression  that  we  wish  to  impress  upon 
the  mind  of  the  student  that  under  the  principles  of  our  law,  no 
man  can  be  deprived  of  a  substantial  right  until  he  has  a  right 
to  be  heard  in  the  courts  to  vindicate  his  right.  Therefore,  we 
reiterate  that  the  statute  of  limitations  does  not  run  against 
one  who  is  not  entitled  to  bring  a  suit  to  vindicate  his  right. 
And  he  is  not  required  to  pay  any  attention  to  the  possession 
until  he,  himself,  is  entitled  to  the  possession. 

INFANTS. 

For  the  same  reason  the  statutes  of  limitations  will  not  run 
against  one  under  disability  and  therefore  incapable  of  protect- 
ing his  or  her  title. 

Thus  the  statutes  will  not  commence  to  run  against  an  in- 
fant or  an  insane  person  until  the  disability  is  removed. 

5.  THE  POSSESSION  OF  THE  DISSEISOR  MUST  BE  EX- 
CLUSIVE. 

The  possession  of  the  claimant  and  the  legal  owner  cannot 
be  concurrent,  for  if  the  true  owner  is  in  possession  at  all,  the 
possession  of  other  persons  will  be  deemed  to  be  under  his 
title.88 


s.   Hitchcock.  38   Neb.,    lot. 

This  was  an  action  of  ejectment  by  Mrs.  Smith  for  a  part  of  a  lot. 
Her  claim  was  based  solely  on  an  alleged  possession.  About  1870.  by 
permission  of  defendant's  ancestor  Mrs.  Smith  moved  a  cottage  which 
she  owned  on  the  eastern  portion  of  the  lot  and  occupied  the  same  as  a 
home.  Defendant's  ancestor  also  lived  on  the  same  lot  which  was  under 
one  inclosure.  The  court  directed  a  verdict  for  the  defendant,  and  this 
ruling  was  affirmed  by  the  Supreme  Court.  The  latter  court  stated  the 
reason  for  its  ruling  as  follows:  "Her  possession  of  the  lot  was  con- 
current with  that  of  the  owner  of  the  legal  title.  It  was  a  mixed  pos- 
session not  an  exclusive  one.  The  defendant  in  error,  the  holder  of 
the  legal  title,  has  never  been  out  of  possession  of  the  property  claimed 
by  Mrs.  Smith,  and  this  negatives  auy  legal  presumption  that  her  pos- 
session was  adverse  to  his  title  or  possession." 


454  TITLE   TO   REAL   PROPERTY. 

The  possession  of  the  claimant  must  also  be  exclusive  of  all 
co-tenants  and  of  third  persons. 

6.  IN  ORDEB  TO  CONSTITUTE  ADVERSE  POSSESSION, 
THE  POSSESSION  OF  THE  DISSEISOB  MUST  BE  UNDEB  COLOB 
OF  TITLE  OB  WITH  AN  INTENT  TO  ASSEBT  TITLE  IN  HIM- 
SELF. 

In  order  to  constitute  a  disseisin  necessary  to  start  the  run- 
ning of  the  statute  of  limitations,  it  must  have  been  the  in- 
tention on  the  part  of  the  disseisor  to  assert  title  in  himself.69 
In  the  absence  of  such  an  intent  the  holding  will  not  be  ad- 
verse.70 

While  some  of  the  cases  hold  that  there  must  be  on  the 
part  of  the  disseisor  a  bona  fide  belief  in  the  merit  of  his  claim 
to  title,  this  is  not  the  general  rule. 

THE  POSSESSION  OF  THE  DISSEISOB  NEED  NOT  BE  UNDEB 
COLOB  OF  TITLE,  OB  UNDEB  WHAT  HE  BELIEVES  TO  BE  A 

«9Smeberg    vs.    Cunningham,   OO    Mich.,  378. 

Action  of  ejectment.  Plaintiff  was  owner  of  the  legal  title  and 
defendant  claimed  by  adverse  possession.  The  piece  occupied  by  de- 
fendant was  a  portion  of  a  larger  tract  which  was  plainly  unoccupied. 
The  owner  of  the  land  did  not  pay  much  attention  to  it,  and  defendant 
moved  into  a  house  built  on  the  property  and  occupied  it  for  over 
fifteen  years.  Defendant  first  occupied  the  house  because  no  one  looked 
after  it,  and  with  the  intent  to  occupy  it  as  long  as  she  could  do  so 
without  paying  rent. 

The  Supreme  Court  held  that  the  lower  court  should  have  in- 
structed the  jury  that  the  defendant  had  failed  to  establish  title  by 
adverse  possession.  "She  did  not  enter  under  any  claim  or  color  of 
right,  nor  in  the  belief  that  she  had  any  right.  *****  gne  $1$ 
not  intend  to  retain  possession,  according  to  her  own  evidence,  any 
longer  than  she  could  do  so  without  the  payment  of  rent.  This  was 
a  recognition  of  a  title  in  some  one  else  and  was  conclusive  evidence 
that  her  entry  and  possession  were  subject  to  that  title.  *  *  *  An 
entry  with  intent  to  remain  in  possession  until  the  real  owner  claims 
it  or  demands  rent  is  not  hostile." 

"Treble  vs.  Maine  C.  R.  Co.,  85  Me.,  260;  21  L.  R.  A.,  829. 

In  this  case  it  was  held  that  the  occupancy  of  land  up  to  a  certain 
fence,  under  the  belief  that  the  fence  marked  the  true  boundary  line, 
would  not  constitute  an  adverse  possession,  if  there  was  no  intention  to 
claim  title  beyond  the  true  line. 

See  also,  King  vs.  Brigham,  23  Or.,  262;  18  L.  R.  A.,  361. 

Contra,  Erck  vs.  Church,  87  Tenn..  575;  4  L.  R.  A.,  641. 


TITLE   TO   REAL   PROPERTY.  455 

RIGHTFUL   CLAIM;    IT  IS  SUFFICIENT  IF  HE  CLAIMS    THE 
PROPERTY  AS  HIS  OWN." 

From  this  statement  it  follows  that  a  bona  fide  belief  in 
his  own  right  to  the  property  is  not  required  of  the  disseissor. 
Under  the  early  law  it  was  held  that  only  occupants  in  good 
faith,  that  is  those  who  have  a  bona  fide  belief  in  their  right 
to  the  property,  could  acquire  title  by  adverse  possession.  Some 
of  the  courts  still  seem  to  adhere  to  the  doctrine  of  these  old 
decisions.  As  a  general  rule  under  the  statutes  and  later 
decisions,  it  is  now  unnecessary  to  inquire  "into  the  hidden 
motives  of  the  entry  or  possession,  and  all  questions  of  good 
faith  respecting  the  same;"72  it  is  sufficient  that  the  possession 
of  the  disseisor  is  hostile  to  all  the  world  and  that  he  intends  to 
hold  the  land  as  his  own.73 

There  is  this  limitation  on  this  doctrine: 

WHERE  ONE  HAVING  ACTUAL  POSSESSION  OF  A  PORTION 
OF  A  TRACT  OF  LAND,  CLAIMS  ADVERSE  TITLE  BY  CON- 
STRUCTIVE POSSESSION  UNDER  COLOR  OF  TITLE  TO  ANY 
PORTION  OF  THE  TRACT  BEYOND  HIS  ACTUAL  POSSESSION, 
HE  MUST,  AS  TO  THE  PORTION  CONSTRUCTIVELY  POS- 
SESSED, HAVE  A  BONA  FIDE  RELIANCE  ON  HIS  ALLEGED 
TITLE,  IN  ORDER  THAT  HIS  POSSESSION  MAY  BE  ADVERSE.74 

Thus,  if  the  disseisor  knew  that  his  title  was  defective,  and 
that  he  had  no  title,  he  cannot  acquire  title  to  that  portion  of 
the  tract  of  which  he  was  only  in  constructive  possession  under 


"Illinois  Central  R.  Co.  vs.  Houghton,  126  111.,  233;  1    L.  R.  A.,  213. 
"Lampman  vs.  Van  Alstyne,  94  Wis.,  417. 
T8Railroad  Co.  vs.  Groh.,  85  Wis.,  641. 

Foulke  vs.  Bond,  41  N.  J.  L.,  541. 

Oliver  vs.  Pullam,  24  Fed.  Rep.,  127. 
74Kopp  vs.  Herrman,  82  Md.,  339. 


45t>  TITLE    TO    KKA1.    1'KOPERTY. 

color  of  title,75  but  he  may  acquire  title  to  that  portion  of  which 
he  was  in  actual  possession.76 

EFFECT  OF  ADVERSE  POSSESSION. 

ADVERSE  POSSESSION  OF  LAND  FOB  A  PERIOD  SUFFI- 
CIENT UNDER  THE  STATUTE  OF  LIMITATIONS  TO  BAR  AN 
ACTION  FOR  ITS  RECOVERY,  NOT  ONLY  CUTS  OFF  THE 
OWNER'S  REMEDY,  BUT  DIVESTS  THE  ESTATE  OF  THE  TRUE 
OWNER.  7  7 

Thus  it  is  held  that  adverse  possession  for  the  statutory 
period  enables  the  adverse  claimant  not  only  to  defend  his  own 
possession  against  the  owner  of  the  legal  title,  but  also  to  re- 
cover possession  from  another  who  has  subsequently  taken  it.78 

PROOF. 

When  the  facts  in  any  case  in  which  the  question  of  adverse 
possession  arises  are  undisputed,  it  is  a  question  for  the  court 
to  decide  whether  the  facts  are  sufficient  to  constitute  an  ad- 
verse possession.  When  the  facts  are  not  conclusively  estab- 
lished by  the  evidence,  it  is  for  the  jury  to  determine  under  the 
charge  of  the  court  whether  the  essentials  of  an  adverse  pos- 
«ssion  exist  in  any  given  case.70 

The  burden  of  proof  is  on  the  party  setting  up  the  adverse 
possession.  All  reasonable  presumptions  are  in  favor  of  the 
owner  of  the  legal  title,  and  the  evidence  to  divest  him  of  his 
title  ought  to  be  clear  and  positive.80 

"Foulke  vs.  Bond,  41  X.  J.  L..  527. 

Green  vs.  Kellum,  23  Pa    St.,  254. 
T6Strange  vs.  Durham.  2  Bay  (S.  C.),  429. 

The  requirement  of  good  faith  of  a  claimant  under  color  of  title  is 
not  required  in  some  States. 

Railroad  Co.  vs.  Groh,  85  Wis.,  041. 
"Bicknell  vs.  Comstock.  113  TJ.  S.,  140. 

Baker  vs.  Oakwood.  123  X.  Y..  16;  10  L.  R.  A..  387. 
78Gage  vs.  Hampton.  127  111..  87:  2  L.  R.  A.,  512. 
"Higtostone  vs.  Burdette,  54  Mich.,  329. 
"Lampman  vs.  Van  Alstyne.  94  Wis.,  417. 


TITLE    TO    REAL    PROPERTY.  457 

TITLE  BY  ESTOPPEL. 

We  have  already  had  occasion  to  discuss  somewhat  the 
doctrine  of  estoppel,  as  applied  to  the  relation  of  landlord  and 
tenant,  and  of  a  life  tenant  to  a  remainderman.  We  have  seen 
that  one  in  possession  owing  faith  and  allegiance  to  one  under 
whom  he  holds,  is  estopped  to  deny  the  latter's  title.  From 
another  standpoint  we  may  define  an  estoppel  as  follows: 

WHERE  ONE,  BY  RECORD  OB  DEED,  OB  BY  HIS  WOBDS 
OB  CONDUCT,  ADMITS  A  FACT  WHICH  CAUSES  ANOTHEB  TO 
BELIEVE  THAT  SUCH  FACT  EXISTS,  AND  INDUCES  HIM  TO 
ACT  ON  THAT  BELIEF,  SO  AS  TO  ALTEB  HIS  PBEVIOUS  CON- 
DITION, THE  FOBMEB  IS  PBECLUDED  FBOM  AVEBBING 
AGAINST  THE  LATTEB  A  DIFFEBENT  STATE  OF  FACTS  AS 
EXISTING  AT  THE  SAME  TIME/2 

It  remains  to  briefly  consider  the  application  of  this  doc- 
trine to  the  title  of  real  property.  An  examination  of  the  above 
definition  will  disclose  that  estoppels  are  of  three  kinds:  (1)  by 
matter  of  record,  (2)  by  matter  in  writing,  (3),  by  word  or  con- 
duct known  as  matter  in  pais. 

ESTOPPEL  BY  RECORD. 

The  judicial  ascertainment  of  facts  by  a  court  of  competent 
jurisdiction,  is  a  conclusive  ascertainment  of  the  same  facts  as 
between  the  same  parties,  and  such  parties  are  thereafter 
estopped  from  denying  the  facts  so  ascertained. 

ESTOPPEL  BY  WRITING. 

(a)     By  Will. 

It  is  one  of  the  doctrines  of  the  law  that  a  person  cannot 
accept  and  reject  the  same  instrument.  Therefore,  one  taking 
tinder  a  will  may  not  accept  those  terms  of  it  favorable  to  him- 
self and  reject  any  unfavorable  terms  or  conditions;  for  having 
accepted  the  former  he  is  estopped  to  deny  the  latter. 

"Colorado  L.  &  I.  Co.  vs.  Grand  Canal  Co..  3  Col.  App.,  63. 
Fox  vs.  Windes,  127  Mo.,  502. 


458  TITLE   TO   REAL   PROPERTY. 

(b)     By  Deed. 

The  same  rule  applies  to  deeds  as  has  just  been  stated  in 
reference  to  wills.  "The  grantee  in  a  deed  poll  by  accepting 
it,  becomes  bound  by  its  terms  as  completely  and  absolutely 
as  the  grantor,  and  it  will  operate  as  an  estoppel  against  him 
by  reason  of  its  acceptance."8*  The  grantor  is,  of  course,  bound 
by  the  terms  of  his  grant,  and  he  will  afterwards  be  estopped 
from  disputing  its  terms.  The  most  common  application 
of  this  principle  is  found  in  the  case  of  a  grantor  with 
warranty  as  to  his  title,  attempting  to  set  up  as  against  his 
grantee  an  after  acquired  title.  The  grantor  in  a  warranty 
deed  and  those  in  privity  with  him  are  estopped  from  availing 
themselves  of  an  after  acquired  title.85  A  quit-claim  deed,  since 
it  contains  no  representations  as  to  the  title,  and  purports  only 
to  convey  such  title  as  the  grantor  has  at  the  time  of  its  execu- 
tion, does  not,  as  a  general  rule,  create  an  estoppel. 

A  QUIT-CLAIM  DEED  DOES  NOT  ESTOP  THE  GRANTOR 
FROM  ASSERTING  AN  AFTER-ACQUIRED  TITLE.86 

THE  PARTIES  TO  A  DEED  AND  THEIR  PRIVIES  WILL 
ALSO  BE  ESTOPPED  FROM  DISPUTING  THOSE  RECITALS  IN 
THE  DEED  WHICH  ARE  DEFINITE  AND  MATERIAL  TO  THE 
TRANSACTION.87 

Thus,  where  a  grantee  accepts  a  deed  which  recites  a  mort- 
gage in  favor  of  a  corporation,  it  was  held  that  the  grantee 
could  not  dispute  the  incorporation  of  the  alleged  company.88 

"Lowber  vs.  Connit,  36  Wis.,  176. 

WFoote  vs.  Clark,  1O2  Mo.,  394;   11    L.   R.   A.,  861. 

A  life  tenant  conveyed  an  estate  in  fee  simple  in  real  property 
with  a  covenant  that  the  grantor  was  at  the  time  of  the  execution  of 
such  conveyance  seised  of  an  indefensible  estate  in  fee  simple.  Sub- 
sequent to  the  making  of  this  deed  the  grantor  acquired  an  interest 
from  her  children  by  inheritance.  The  Supreme  Court  held  that  any  in- 
terest which  she  inherited  passed  to  her  grantee. 

"Haskett  vs.  Maxey,  19  L  R.  A.,  379. 

"Dodge  vs.  Kennedy,  93  Mich.,  547. 

"Hasenritter  vs.  Kirchhoffer,  79  Mo.,  239. 


TITLE   TO    REAL   PROPERTY.  459 

So  it  was  held  that  a  plaintiff  in  ejectment  who  claimed 
under  a  sheriff's  deed,  on  the  foreclosure  of  a  mortgage,  is  bound 
by  the  recital  in  the  deed  of  the  amount  due  on  the  mortgage, 
and  from  claiming  that  the  mortgagor  is  not  entitled  to  redeem 
on  payment  of  that  sum.  The  court  says :  "The  plaintiff  now 
seeks  to  deny  this  recital,  and  at  the  same  time  claim  under  it. 
He  cannot  be  permitted  to  do  this.  If  his  deed  conveys  the 
title  to  him,  he  must  take  it  as  it  is.  He  cannot  adopt  those 
provisions  which  establish  his  claim  and  repudiate  the 
others."89 

AS  A  GENERAL  RULE,  THE  RECITAL  IN  A  DEED  OF  THE 
PAYMENT  OF  THE  PURCHASE  PRICE  DOES  NOT  ESTOP  THE 
GRANTOR  FROM  SUING  THEREFOR. 

A  receipt  is  always  open  to  explanation,  and  the  recital  of 
receipt  in  a  deed  is  regarded  the  same  as  a  separate  receipt,  and 
may  be  varied  or  explained  by  parol  evidence.80 

ESTOPPEL  IN  PAIS. 

AN  ESTOPPEL  IN  PAIS,  IS  ONE  WHICH  ARISES  FROM 
WORD  OR  CONDUCT,  AND  NOT  FROM  A  RECORD  OR  WRITING. 

The  doctrine  of  estoppel  in  pais,  while  it  is  founded  upon 
equitable  principles  to  prevent  fraud  and  oppression,  must  be 
applied  with  the  greatest  care  to  questions  affecting  the  title 
to  real  property.  Under  the  policy  of  the  law,  title  deeds  are 
the  best  protection  of  estates.  "They  prove  themselves,  and 
the  record  of  them  is  notice  upon  which  every  one  may  rely  in 
bargaining  for  and  in  acquiring  lands."  Under  the  statute  of 
frauds,  an  interest  in  land  can  be  created  only  by  a  writing, 
and  such  writing  cannot  be  changed  by  parol  agreements  or 
understandings.  Any  doctrine,  therefore,  by  which  the  instru- 
ments of  title  may  be  set  aside  or  controlled  by  verbal  state- 

"Dodge  vs.  Kennedy,  93  Mich.,  547. 
•"Smith  vs.  Arthur,  110  N.  C.,  400. 


460  TITLE   TO   REAL   PROPERTY. 

ments,  or  admission,  or  by  the  conduct  of  the  parties,  must  be 
applied  only  when  the  grounds  upon  which  it  rests  are  clearly 
and  satisfactorily  established,  and  not  then  "except  in  support 
of  a  clear  equity  or  to  prevent  fraud.''91  Some  courts,  in  fact, 
while  they  apply  the  doctrine  of  estoppel  in  pais  so  as  to  affect 
the  title  of  personal  property,  will  not  extend  it  to  cases  involv- 
ing title  to  real  property,  except  in  equitable  proceedings.  In 
other  words,  in  the  States  adopting  this  view,  at  law  the  legal 
title  will  prevail,  unaffected  by  estoppel  resting  in  parol.  The 
reason  for  this  ruling  has  already  been  indicated  and  is  stated 
as  follows  by  Judge  Cooley:  "*  *  *  A  conversation  mis- 
understood or  falsely  reported  controls  the  most  perfect  chain 
of  conveyances,  and  any  estate — the  most  valuable  in  the  land 
equally  with  the  most  worthless — is  liable  to  be  taken  from 
the  owner  on  the  impression  which  a  jury  receives  of  the  pre- 
ponderance of  evidence  concerning  words  which  witnesses  may 
have  imperfectly  heard,  or  incorrectly  understood,  or  the  pur- 
port of  which  they  may  have  unintentionally  colored,  or  pur- 
posely wrenched  from  the  real  meaning  in  the  mind  of  the 
speaker.  The  evils  against  which  the  statute  of  frauds  was 
aimed,  are  all  here  in  their  most  threatening  form;  and  it 
seems  to  us  a  trifling  with  the  statute  to  refuse  to  apply  it  to 
a  case  clearly  within  its  spirit,  when  in  order  to  exclude  it 
from  the  letter  it  is  necessary  to  put  the  title  out  of  view  and 
deny  that  it  is  involved,  though  the  decision  is  to  effectually 
dispose  of  it."92 

Many  of  the  courts,  however,  will  apply  the  principles  of 
equitable  estoppel  in  law  as  well  as  in  equity,  and  will  permit 
an  estoppel  on  a  proper  showing  to  overcome  the  legal  and 
written  title. 

"Lyon  vs.  Morgan,  143  N.  Y.,  505. 
"Hayes  vs.  Livingstone,  34  Mich.,  396. 


TITLE   TO    HEAL   PROPERTY.  461 

The  doctrine  of  estoppel  is  often  applied  in  the  following 
instances: 

1.  ONE  IS  OFTEN  ESTOPPED  FROM  ASSEBTING  TITLE  TO 
PROPERTY  UPON  WHICH  HE  HAS,  BY  CONDUCT  OR  SILENCE, 
MISLED    ANOTHER,    WHO    SUPPOSED    HIMSELF    TO    BE    THE 
OWNER,  TO  MAKE  EXPENDITURES." 

2.  WHEN  ONE  STANDS  BY  AND  PERMITS  ANOTHER,  WHO 
ASSUMES  TO  BE  THE  OWNER  OF  HIS  PROPERTY,  TO  SELL  IT 
TO  A  THIRD  PERSON,    WITHOUT    DISCLOSING     HIS     CLAIM, 
HE    WILL   BE    ESTOPPED   FROM    AFTERWARDS    ASSERTING 
HIS  TITLE  AS  AGAINST  SUCH  PURCHASER. 

Both  of  these  statements  grow  out  of  the  familiar  equitable 
maxim  that  "when  a  man  has  been  silent  when  iu  conscience 
he  ought  to  have  spoken,  he  will  be  debarred  from  speaking 
when  conscience  requires  him  to  keep  silent."  Lord  Cransworth 
in  speaking  of  the  essentials  of  an  estoppel  arising  from  the 
expenditure  of  money  on  land,  says:  "It  must  have  three  fea- 
tures, first,  the  person  expending  the  money  must  believe  him- 
self to  be  the  owner  of  the  land;  secondly,  the  real  owner  who 
encourages  the  expenditure  by  his  silence  must  know  that  the 
land  belongs  to  him,  and  thirdly,  that  the  other  is  act- 
ing in  an  erroneous  belief  as  to  its  ownership."8*  In 
other  words,  in  order  to  create  an  estoppel,  the  circumstances 
of  the  case  must  be  such  that  the  owner  of  the  land  has  an 
opportunity  and  a  duty  to  notify  the  person  making  the  im- 
provements of  his  interest  in  the  property.*5  If  the  circum- 
stances are  not  such  as  to  raise  this  duty,  the  making  of 
the  improvements  will  not  of  itself  create  an  estoppel.  Thus,  if 
an  owner  maintains  a  silence  without  knowledge  that  improve- 
ments are  being  made,  or  that  the  expenditures  were  being 

"Scharman  vs.  Scharman,  38  Neb.,  39. 

Lindsay  vs.  Cooper,  94  Ala.,  170 
"Ramsden  vs.  Dyson,  L.  R..  1  H.  L.,  129.  141. 
"Knoedler  vs.  Glaenzer,  55  Fed.,  895;  20  L.  R.  A.,  733. 


462  TITLE   TO   REAL   PROPERTY. 

made  under  a  mistake  of  title,  be  will  not  be  estopped  from 
asserting  bis  title.  So  it  was  held  that  an  owner  was  not 
estopped  from  asserting  his  title  when  it  appeared  that  he  hon- 
estly believed  that  his  neighbor  knew  the  correct  location  of 
the  boundary  line.96  It  must  also  appear  that  the  person  claim- 
ing an  estoppel  relied  upon  the  act  or  silence  of  the  true  owner. 
If  the  party  making  the  improvements  had  knowledge  of  the 
true  facts,  or  if  he  did  not  rely  on  the  silence  or  act  of  the 
legal  owner,  no  estoppel  will  arise. 

In  cases  in  which  the  person  making  the  improvement  can  be 
fully  indemnified  by  a  money  decree,  the  equitable  courts  will 
permit  the  legal  owner  to  assert  his  title  on  making  adequate 
compensation  to  the  maker  of  the  improvement.  If  the  injury 
cannot  be  measured  in  dollars  and  cents,  the  courts  will  pass 
the  eqiiitable  title  to  the  one  making  the  improvement  and  re- 
strain the  assertion  of  the  legal  title.97 

The  above  rules  are  held  to  be  inapplicable  by  some  courts, 
in  cases  in  which  the  true  facts  might  have  been  discovered  by 
a  consultation  of  the  public  records.  In  a  recent  case  the  Su- 
preme Court  of  Alabama  said:  "The  law  is  well  settled  that 
one  having  a  record  title,  so  long  as  he  may  do  no  affirmative 
act  to  mislead  or  deceive,  is  under  no  further  duty  to  those 
who  may  acquire  subsequent  rights  and  will  not  be  barred  from 
the  assertion  of  his  title.  *  *  *  The  presumption  is  right 
and  just  that  an  intending  purchaser  examines  the  records 
touching  the  title  of  his  vendor,  and  it  is  just  and  right  to  im- 
pute to  him  notice  or  knowledge  of  all  the  record  may  dis- 
close. If  the  examination  is  not  made,  whatever  loss  may  re- 
sult is  attributable  to  his  negligence,  and  not  to  the  fault  of 
him  who  has  on  record  a  paramount  claim  of  title."98 

"Mulljaney  vs.  Duffy,  145  111.,  559. 
"Sunnier  vs.  Seaton.  47  N.  .T.  Eq.,  103. 
"Porter  vs.  Wheeler.  105  Ala.,  451. 


TITLE   TO   REAL  PROPERTY.  463 

BOUNDARIES. 

The  principles  of  the  law  of  estoppel  are  frequently  applied 
with  reference  to  the  fixing  of  boundary  lines. 

WHERE  THE  BOUNDARY  LINE  BETWEEN  ADJOINING 
PROPERTIES  IS  UNCERTAIN  AND  DOUBTFUL,  AND  THE  AD- 
JOINING OWNERS  MEET  AND,  BY  PAROL  AGREEMENT,  FIX 
A  BOUNDARY  LINE,  AND  THEREAFTER  ACQUIESCE  IN  THE 
LINE  SO  ESTABLISHED,  SUCH  LINE  WILL  BE  CONSIDERED 
THE  TRUE  LINE,  ALTHOUGH  THE  PERIOD  OF  ACQUIESCENCE 
FALLS  SHORT  OF  THE  TIME  FIXED  BY  THE  STATUTE  OF  LIM- 
ITATION FOR  GAINING  TITLE  BY  ADVERSE  POSSESSION." 

It  is  the  policy  of  the  law  to  permit  parties  to  settle  doubt- 
ful and  disputed  facts  among  themselves,  and  when  such  settle- 
ment does  not  violate  some  legal  rule,  the  parties  will  not  after- 
wards be  permitted  to  deny  it.  If  the  boundary  for  any  reason 
is  uncertain  and  doubtful,  the  agreement  of  the  parties  fixing 
it  is  regarded  by  the  courts  as  a  practical  construction  of  the 
deeds  under  which  they  claim,  and  the  parties  will  hold  title 
up  to  the  line  fixed,  not  by  virtue  of  the  parol  agreement,  but  by 
the  terms  of  their  grant  which  they  have  by  their  agreement 
construed  and  defined. 

IF  THE  BOUNDARY  LINE  IS  NOT  DOUBTFUL,  OR  IF  IT 
IS  CLEARLY  LOCATED  BY  THE  DEEDS  UNDER  WHICH  PAR- 
TIES CLAIM,  ANY  PAROL  AGREEMENT  WHICH  VARIES  THE 
TRUE  LINE  IS  WITHIN  THE  STATUTE  OF  FRAUDS  AND  IS 
VOID.100 

It  wrill  be  at  once  apparent  that  any  parol  agreement  which 
gives  to  an  owner  more  property  than  his  deed  calls  for,  would 
operate  as  a  transfer  of  interest  in  real  property,  which  the 
statute  of  frauds  requires  to  be  in  writing.  It  is  only  where 
there  is  an  honest  dispute  as  to  the  boundary  line  and  where 
the  terms  of  the  grants  can  be  extended  to  the  property  held  by 

•"Smith  vs.  Hamilton,  20  Mich.,  433. 

Galbraith  vs.  Lunsford,  87  Tenn.,  89;  1  L.  R.  A.,  522. 
"•DeLong  vs.  Baldwin,  111  Mich.,  466. 


464  TITLE   TO   REAL  PROPERTY. 

each  owner,  that  the  courts  will  regard  the  interpretation  put 
on  such  grants  by  the  adjoining  owners.  In  many  States,  if 
the  line  is  certain  and  fixed,  a  parol  agreement  changing  such 
line,  if  acquiesced  in  for  the  period  required  by  the  statute  of 
limitations,  will  establish  the  title  of  the  adjoining  owners  up 
to  the  line  fixed  by  such  agreement.101 

TITLE  BY  ACCRETIONS. 

It  is  a  matter  of  common  knowledge,  that  by  reason  of  the 
tides  of  the  ocean  or  by  the  currents  of  rivers,  mud,  sand,  soil 
and  other  materials  are  often  deposited  upon  the  land  washed 
by  water.  When  the  process  by  which  this  deposit  is  formed 
is  gradual,  it  is  known  as  accretion;  and  the  deposit  itself  is 
known  as  alluvion. 

ACCRETION  IS  THE  PROCESS,  BY  WHICH  AN  ADDITION  IS 
MADE  TO  LAND  BY  THE  WASHING  TIP  OF  EARTH  AND  OTHER 
MATERIAL,  BY  CONTIGUOUS  WATERS,  WHEN  THE  FORMA- 
TION OF  SUCH  ADDITION  IS  GRADUAL  AND  IMPERCEPTIBLE. 

ALLUVION  IS  THE  DEPOSIT  OR  FORMATION  RESULTING 
FROM  THE  PROCESS  OF  ACCRETION. 

The  material  deposited  in  this  imperceptible  and  gradual 
manner,  is  the  result  of  a  washing  away  of  particles  or  atoms 

of  soil  from  the  land  washed  by  the  same  water.  The  washing 
away  of  the  soil  in  most  instances,  like  the  formation  of  the 

deposit,  is  gradual  and  imperceptible.  By  reason  of  this  grad- 
ual process  it  is  impossible  for  the  person  from  whose  land  the 
soil  is  washed  to  identify  it  when  deposited  on  the  land  of 
another. 

it  sometimes  happens,  however,  that  by  some  sudden  action 
of  the  waters,  considerable  portions  of  land  are  carried  away 

101Bunce  vs.  Bidwell,  43  Mich.,  542. 


TITLE   TO   REAL   PROPERTY.  465 

and  deposited  upon  the  land  of  another,  in  such  a  way  that  it 
can  be  identified.  This  sudden  change  is  known  as  an  avul- 
sion.102 

RELICTION  IS  THE  SLOW,  GRADUAL  AND  IMPERCEPTI- 
BLE RECESSION  OF  WATER  FROM  LAND  WHICH  IT  FORM- 
ERLY COVERED. 

With  these  definitions  we  may  now  inquire  as  to  the  rights 
of  owners  of  land  adjacent  to  water,  with  respect  to  soil  de- 
posited or  carried  away  by  the  water,  and  first  Avith  respect  to 
accretions. 

ALLUVION  BECOMES  A  PART  OF  THE  -P.iaAT.TV  UPON 
WHICH  IT  IS  CAST. 

Accretions  being  an  imperceptible  addition,  it  would  be  im- 
possible for  any  one  to  identify  the  additions  as  coming  from 
his  property,  and  the  law  will  not  permit  him  to  claim  that 
which  he  cannot  show  to  belong  to  him;  and  the  law  permits 
the  owner  of  the  land  upon  which  it  is  cast  to  keep  it  on  the 
principle  of  compensation  for  the  risk  of  loss  that  he  runs  of 
losing  a  portion  of  his  property  by  the  same  means  as  it  is 
added  to. 

"The  law  is  wise  and  just.  If  the  action  of  the  river  had 
gradually  worn  away  -the  defendant's  land  after  the  purchase 
from  the  United  States,  the  loss  would  have  been  his.  To  com- 
pensate him  for  risk  of  loss  in  this  manner,  as  well  as  to  pre- 
serve to  him  the  benefits  of  his  water  front,  the  law  gives  him 
the  advantage  of  any  gains  by  accretion  or  alluvial  deposits."101 

If  the  land  is  deposited  not  imperceptibly  and  gradually, 
but  by  some  avulsion,  and  can  be  identified,  the  above  rule  does 
not  apply.  In  the  case  of  avulsions,  the  title  to  the  deposit 
continues  in  the  original  owner,  and  he  may  enter  and  carry  it 
away  from  the  place  where  it  is  deposited;  if  he  neglects  to  do 

""Nebraska  vs.  Iowa.  143  TJ.  S.,  359. 
'•"Kraut  vs.  Crawford,  18  Iowa,  549. 


466  TITLE   TO   REAL   PROPERTY. 

this,  aud  permits  it  to  become  a  part  of  the  soil  of  the  second 
owner,  his  right  to  take  is  lost.104 

The  same  general  rules  are  applicable  in  the  case  of  relic- 
tions. The  riparian  owner  is  entitled  to  the  new  land  made 
by  the  gradual  recession  of  water,  and  may  claim  the  land  up 
to  the  new  edge  of  the  water.105 

If  the  recession  is  sudden  and  perceptible,  the  riparian 
owner's  rights  are  not  enlarged,  and  the  ownership  of  the  land 
is  not  changed.  Thus  it  was  held  that  the  abandoned  bed  of 
the  Missouri  River,  caused  by  a  sudden  change  of  its  course, 
did  not  belong  to  the  riparian  owner.106 

All  of  the  rules  as  to  accretion  or  reliction  heretofore  stated 
are  applicable  in  all  cases  in  which  property  is  bounded  by 
water,  and  it  makes  no  difference  whether  the  water  is  nav- 
igable or  not,  or  whether  it  consists  of  sea,  river,  lake  or  pond. 

It  often  becomes  necessary  to  ascertain  the  character  of  the 
water  in  order  to  determine  who  is  entitled  to  accretions 
formed  or  deposited,  not  on  the  banks,  but  in  the  water  itself. 

The  boundary  land  adjacent  to  a  navigable  stream  in  which 
the  tide  ebbs  and  flows,  is  at  the  low  water  nlark,  and  the 
title  to  the  bed  of  the  stream  is  in  the  State. 

It  follows  that  if  an  island  is  formed  in  a  navigable  river,  it 
does  not  belong  to  the  riparian  owner.  So  the  accretions  to  an 
islands  in  a  navigable  river  do  not  belong  to  the  riparian 
owner,  but  to  the  owners  of  the  island.107 


'"Woodbury  vs.  Short.  17  Vt.  387. 

3  Wash.  Real  Prop.,  59. 
mWarren  vs.  Chambers,  25  Ark.,  120. 

Fuller  vs.  Shedd,  161  111.,  462;  33  L.  R.  A.,  462. 
10*Oooley  vs.  Golden,  117  Mo.,  33;  21  L.  R.  A..  300. 
107Cooley  vs.  Golden,  117  Mo.,  33;  21  L.  R.  A.,  300. 


TITLE   TO   REAL   PROPERTY.  46 T 

If  the  stream  is  not  navigable,  the  riparian  owners  own  to 
the  thread  of  the  stream,  or,  as  often  called,  the  filum  aquae; 
and  if  an  island  is  formed  within  the  boundaries  of  one  of  the 
riparian  owners,  the  island  belongs  to  him.  In  other  words,  the 
island  belongs  to  the  owner  of  the  soil  on  which  it  is  formed.103 

If  the  island  is  formed  on  one  side  of  the  thread  of  the 
stream,  it  belongs  to  the  riparian  owner  on  that  side;  but  if  the 
island  is  formed  so  that  it  is  partly  on  one  side  and  partly  on 
the  other,  it  will  be  divided  according  to  the  boundary  line 
prior  to  such  formation.109 

108Cooley  TS.  Golden.  117  Mo.,  33;   21  L.  R.  A.,  300. 
""Hopkins  Academy  vs.  Dickinson,  9  Gush.  (Mass.),  548. 


CHAPTER  II. 

TITLE  BY  ALIENATION. 

INVOLUNTARY   ALIENATION. 

At  the  common  law,  the  owner  of  a  vested  interest  in  real 
property  could  not  be  compelled  to  convey  it;  neither  could  his 
interest  be  conveyed  without  his  consent  by  any  judicial  pro- 
ceeding. 

This  is  still  the  general  rule;  but  it  is  subject  to  a  number 
of  exceptions. 

In  a  number  of  instances  the  law  will  compel  a  conveyance 
or  provide  a  substitute  for  the  act  of  the  owner,  by  which  the 
title  of  an  owner  may  be  passed  to  another  without  his  con- 
sent. 

INVOLUNTARY  ALIENATION  INCLUDES  ALL  THOSE 
METHODS  OF  TRANSFER  WHICH  ARE  AGAINST  THE  WILL 
OF  THE  OWNER,  AND  ALL  METHODS  OF  TRANSFER  UNDER 
THE  LAW  WITHOUT  THE  ACT  OF  THE  OWNER. 

The  legislatures  of  the  various  States,  on  the  ground  of  pub- 
lic policy,  have  provided  that  under  certain  circumstances  the 
interest  of  one  incapable  of  conveying,  or  of  one  capable  of 
conveying  but  unwilling  to  do  so,  may  be  transferred  by  a 
judicial,  or  other  proceeding,  to  another.  We  will  briefly  con- 
sider some  of  the  circumstances  under  which  involuntary  alien- 
ation may  take  place. 

TITLE  BY  EXECUTION. 

AN  EXECUTION  IS  THE  PROCESS  BY  WHICH  THE  FINAL 
JUDGMENT  OF  A  COURT  OF  LAW  IS  GIVEN  EFFECT.1 

'Reid  vs.  N.  W.  R.  Co.,  32  Pa.  St.,  257. 
Pierson  vs.  Hammond,  22  Tex.,  585. 

468 


TITLE   BY   ALIENATION.  469 

At  the  common  law  real  property  could  not  be  sold  on  an 
execution.  In  all  the  States,  statutes  have  been  passed  chang- 
ing the  common  law,  and  providing  that  personal  and  real 
property,  if  not  exempt  by  law,  may  be  sold  under  an  execu- 
tion. 

The  statutes  of  the  different  States  vary  somewhat. 

In  order  that  a  valid  title  pass  to  the  purchaser  at  an  execu- 
tion sale  the  following  facts  must  appear : 

1.     THERE  MUST  BE  A  VALID  JUDGMENT. 

The  authority  of  the  sheriff  to  sell  arises  out  of  a  valid  judg- 
ment against  the  person  whose  interest  it  is  sought  to  reach  by 
execution.2  If  the  judgment  is  null  and  void,  the  sheriff  has  no 
authority  to  sell,  and  any  attempted  sale  is  invalid.  The  sale 
of  property  under  the  judgment  of  a  court  which  did  not  have 
jurisdiction  of  the  subject  matter  of  the  litigation,  is  ineffectual 
to  pass  title.3 

It  is  not  necessary  to  discuss,  in  a  book  of  this  character, 
the  essentials  of  a  valid  judgment. 

2.  THE  JUDGMENT  MUST  BE  IN  FORCE  AT  THE  TIME  OF 
THE  SALE. 

The  payment  of  a  judgment  to  a  person  or  officer  authorized 
by  law  to  accept  it,  discharges  the  judgment  and  extinguishes 
an  execution  issued  under  it.4 

3.  THE  JUDGMENT  MUST  BE  A  LIEN  ON  THE  PROPERTY 
SOLD. 

After  the  entry  of  the  judgment,  the  plaintiff  or  his  attorney 
may  within  a  certain  time,  limited  by  statute,  cause  an  execu- 
tion or  fieri  facias  to  be  issued. 

'Adams  vs.  Hubbard,  30  Mich.,  103. 

•W.eidersum  vs.  Naumann  62  How.  Pr.,  369. 

Furgeson  vs.  Jones,  17  Or.,  204;  3  L.  R.  A.,  620. 
'Knight  vs.  Morrison,  79  Ga..  55. 

Hendry  vs.  Benlisa,  37  Fla.,  609;  34  L.  R.  A.,  283. 


470  TITLE  BY   ALIENATION. 

A  fieri  facias  is  a  writ  issued  in  the  name  of  the  State  and 
directed  to  the  sheriff,  commanding  him  that  of  the  goods  and 
chattels  and  of  the  lands  and  tenements  of  the  defendant 
therein  named  in  his  bailiwick,  he  cause  to  be  levied  a  certain 
debt  which  plaintiff  recovered  against  defendant,  and  that  he 
bring  the  money  before  the  court  by  a  certain  day,  to  render  to 
the  plaintiff  his  debt  and  damages. 

In  England,  immediately  on  the  delivery  of  this  writ  to  the 
sheriff,  the  debt  becomes  a  charge  or  lien  upon  the  personal  and 
real  property,  subject  to  the  exemptions  of  the  defendant. 

This  rule  prevails  in  a  number  of  the  States. 

In  many  of  the  States  the  lien  does  not  attach  until  the 
sheriff  has  made  a  levy  on  the  property,  in  the  manner  pre- 
scribed by  law.  After  the  lien  once  attaches  to  the  property, 
it  continues  for  the  time  fixed  by  law.  The  length  of  time 
varies  in  the  different  States. 

The  lien  is  then  foreclosed  by  the  sale  of  the  property,  and 
after  the  expiration  of  the  time  of  redemption,  the  property  is 
deeded  by  the  sheriff  to  the  purchaser. 

4.  THE  REQUIREMENTS  OF  THE  STATUTE  REGULATING 
THE  ISSUING  OF  THE  EXECUTION,  THE  ATTACHMENT  OF 
THE  LIEN  AND  THE  SALE  THEREUNDER,  AND  THE  EXECU- 
TION AND  DELIVERY  OF  THE  SHERIFF'S  DEEDS,  MUST  BE 
SUBSTANTIALLY  COMPLIED  WITH. 

For  instance,  it  was  held  that  an  execution  which  failed  to 
name  the  person  whose  property  is  to  be  taken  was  void  under 
a  statute  which  required  that  if  the  judgment  be  for  money 
simply,  it  shall  require  the  officer  to  satisfy  the  judgment  out 
of  the  property  of  the  debtor  subject  to  execution.5 

•Capps  vs.  Leachman  (Tex.),  39  S.  W.,  917. 


TITLE   BY   ALIENATION.  471 

So  it  was  held  under  a  statute  requiring  that  all  process 
must  bear  the  seal  of  the  court  issuing  it,  that  an  execution  not 
under  seal  was  absolutely  void.6 

The  provisions  of  statutes  of  the  different  States  vary  as  to 
method  and  procedure  by  which  liens  may  attach  and  be  en- 
forced against  property.  In  some  States  the  execution  creditor 
must  exhaust  the  personalty  of  the  debtor  before  subjecting 
his  realty  to  the  payment  of  the  judgment  debt. 

In  a  number  of  States  the  sheriff's  deed  must  contain  re- 
citals showing  that  all  the  requirements  of  the  statutes  have 
been  complied  with. 

TITLE  BY  EXECUTION  DOES  NOT  PASS  UNTIL  THE  TIME 
FOR  REDEMPTION  HAS  EXPIRED. 

In  most  States  the  debtor  is  given  a  certain  time  after  the 
sale  in  which  he  may,  on  the  payment  of  the  debt  with  costs, 
redeem  the  property.  On  the  failure  of  the  debtor  to  redeem, 
the  title  passes  to  the  purchaser. 

Before  the  expiration  of  the  time  of  redemption,  the  pur- 
chaser has  a  right  or  interest  in  the  property  which  is  capable 
of  assignment.7 

JUDICIAL  SALES. 

A  JUDICIAL  SALE  IS  ONE  AUTHORIZED,  CONDUCTED  AND 
CONTROLLED  BY  A  COURT  OF  COMPETENT  JURISDICTION. 

A  judicial  sale  is  conducted  by  the  court  through  some  of  its 
agents,  and  is  controlled  by  the  court.  Thus,  the  court,  as  a 
rule,  directs  what  person  shall  make  the  sale,  the  manner  in 
which  the  sale  shall  be  conducted,  and  the  notice  which  shall  be 
given.  After  the  sale  takes  place  the  control  of  the  court  con- 

•Weaver  vs.  Peasly,  163  111.,  251. 
7Lindley  vs.  Crombie,  31  Minn.,  232. 


472  TITLE   BY   ALIENATION. 

tinues,  and  in  the  discretion  of  the  court  the  sale  may  be  con- 
firmed or  set  aside. 

The  difference  between  sales  under  execution  and  judicial 
sales  is  stated  by  Mr.  Freeman  as  follows: 

"The  former  are  based  on  a  general  judgment  for  so  much 
money,  the  latter  on  an  order  to  sell  specific  property;  the 
former  are  conducted  by  an  officer  of  the  law  in  pursuance  of 
the  directions  of  a  statute,  the  latter  are  made  by  the  agent  of 
the  court  in  pursuance  of  the  directions  of  the  court;  in  the 
former,  the  sheriff  is  vendor,  in  the  latter,  the  court:  in  the 
former  the  sale  is  complete  when  the  property  is  struck  off  to 
the  highest  bidder,  in  the  latter  it  must  be  reported  to  and  ap- 
proved by  the  court."8  A  judicial  sale  is  had  in  cases  in  which 
there  is  a  proceeding  in  rem  affecting  definite  property. 

In  the  case  of  an  execution,  so  far  as  the  judgment  of  the 
court  is  concerned,  no  particular  property  is  designated;  the 
sheriff  levies  upon  such  property  as  he  deems  necessary  to  sat- 
isfy the  judgment. 

Sales  under  a  decree  in  Chancery  for  partition,  or  the  fore- 
closure of  a  mortgage,  or  sales  under  creditors'  bills,  are  famil- 
iar examples  of  judicial  sales. 

JUDICIAL  SALES  DO  NOT  COME  WITHIN  THE  STATUTE  OP 
FRAUDS. 

The  only  contracts  for  the  sale  of  real  estate,  which  are 
exempt  from  the  requirements  that  they  must  be  in  writing 
and  signed  by  the  parties,  in  order  to  be  valid,  are  judicial 
sales. 

A  purchaser  at  a  judicial  sale  may  be  compelled  by  the  court 
to  take  the  property  and  pay  the  stipulated  price,  even  though 
he  has  not  signed  a  contract.  In  the  case  of  sales  under  an  exe- 

•Freeman  on  Void  Judicial  Sales,  14. 


TITLE   BY   ALIENATION.  473 

cution,  or  a  sale  under  the  power  of  sale  in  a  mortgage,  or  in  an 
administrator's  sale,  a  different  rule  applies. 

There  must  be  in  such  cases  a  written  memorandum;  a  de- 
posit of  money  will  not  bind  the  sale.  Therefore,  in  all  sales  of 
real  estate  at  auction,  except  in  case  of  judicial  sale,  a  person 
desirous  that  a  valid  sale  shall  be  made,  should  take  the  pre- 
caution to  have  a  memorandum  of  sale  prepared,  ready  to  be 
filled  out,  and  signed  as  soon  as  the  property  is  knocked  down. 

IN  THE  CASE  OF  A  VALID,  EXECUTION,  OB  JUDICIAL 
SALE,  THE  PURCHASER  ACQUIRES  SUCH  INTEREST  AS  THE 
JUDGMENT  DEBTOR  OR  THE  PERSON  AGAINST  WHOM  THE 
DECREE  RAN,  HAD  IN  THE  PROPERTY. 

In  the  absence  of  an  express  representation,  there  Is  no  rep- 
resentation as  to  the  title  of  the  person  whose  property  is  sold, 
and  the  doctrine  of  caveat  emptor  applies. 

EMINENT  DOMAIN. 

EMINENT  DOMAIN  IS  THAT  SOVEREIGN  POWER  VESTED 
IN  THE  PEOPLE.  BY  WHICH  THEY  MAY,  FOR  ANY  PUBLIC 
PURPOSE,  TAKE  THE  PROPERTY  OF  AN  INDIVIDUAL  UPON 
PAYING  JUST  COMPENSATION  TO  HIM.  9 

The  right  of  the  State  to  take  private  property  for  public 
purposes  is  one  which  appertains  to  sovereignty,  and  is  a  ne- 
cessary incident  to  every  government. 

Everything,  including  private  property,  must  give  way  to 
state  and  political  necessities,  and  to  public  benefits. 

THE  POWER  OF  EMINENT  DOMAIN  MAY  BE  EXERCISED 
TO  APPROPRIATE  AND  CONTROL  PRIVATE  PROPERTY,  ONLY 
FOR  PUBLIC  BENEFIT  OR  USE.io 

It  is  impossible  to  lay  down  any  rule  by  which  it  may  be  de- 
termined what  is  a  public  benefit  or  use.    The  wants  and  ne- 
'e Am.  &  Eng.  Ency.,  511. 

Board  of  Health  vs.  Van  Hoesen,  87  Mich.,  533. 
10Trombley  vs.  Auditor  General,  23  Mich.,  471. 
Board  of  Health  vs.  Van  Hoesen,  87  Mich.,  533. 


474  TITLE   BY   ALIENATION. 

cessities  of  different  communities  vary,  and  what  may  be  a  pub- 
lic necessity  in  one  locality  might  be  an  injury  in  another.  We 
can  only  state  the  rule,  that  there  must  be  a  public  use  or 
benefit,  and  the  student  in  determining  whether  or  not  in  any 
particular  case  there  is  a  public  use,  must  ascertain  the  prac- 
tice and  rule  of  the  courts  of  his  own  State. 

The  proper  rule  used  to  be  stated  by  the  late  Judge  George 
S.  Swift,  of  Detroit,  to  juries  in  street  opening  cases  as  fol- 
lows: "If  the  benefit  to  the  public  is  greater  than  the  expense 
and  inconvenience  to  the  public,  this  constitutes  a  public  neces- 
sity, and  if  you  find  this  to  be  the  fact,  you  will  find  that  there 
is  a  public  necessity  for  taking  the  land  necessary  to  open  this 
street." 

There  are  many  improvements  which  would  benefit  a  num- 
ber of  individuals,  or  classes  of  individuals,  which  do  not  war- 
rant the  exercise  of  the  power  of  eminent  domain. 

There  must  be  some  reasonable  demand  by  the  public  at 
large,  and  not  by  individuals,  in  order  that  the  use  may  be  pub- 
lic.11 It  is  not  necessary  that  each  member  of  the  community 
should  have  the  same  degree  of  interest  in  the  use,  or  be  person- 

"Board  of  Health   v«.  Van  Hoesen,  87   Mich.  533;   14   I,    R.  A.,  114. 

Certiorari  to  review  the  proceedings  to  test  the  validity  of  cer- 
tain proceedings  to  condemn  land  for  cemetery  purposes. 

A  statute  of  Michigan  provided  that  whenever  the  board  of  health 
of  any  township  should  deem  it  desirable  and  necessary  to  enlarge 
the  limits  of  any  cemetery,  application  might  be  made  to  a  Circuit 
judge  for  a  jury  to  ascertain  and  determine  the  compensation  to  be 
made  for  the  land  required,  and  that  after  the  determination  of  the 
jury  in  favor  of  such  condemnation  and  the  payment  of  compensa- 
tion, the  title  to  such  land  shall  forever  be  vested  in  the  board  of  di- 
rectors, board  of  health,  etc.  Under  this  statute  it  was  attempted  to 
condemn  land  belonging  to  respondent  Van  Hoesen. 

The  court  held  that  the  public  had  no  interest  in  the  lands  or  their 
use;  that  there  was  no  right  on  the  part  of  the  public  to  buy  lots  or 
bury  their  dead  in  such  cemetery;  that  the  lands  condemned  were  un- 
der the  absolute  control  and  dominion  of  a  corpoi'ation  which  might 
sell  to  one  and  refuse  to  sell  to  another;  and  that  the  land  which  it 
was  desired  to  take  by  such  proceeding  was  not  to  be  devoted  to  the 
public  use. 

Petition  filed  in  lower  court  dismissed. 


TITLE   BY    ALIENATION.  475 

ally  affected  by  it,  to  make  it  public;  for  the  fact  that  some 
persons  will  be  benefited  above  others,  does  not  deprive  the  im- 
provement of  its  public  character.12 

Neither  is  it  necessary  that  the  entire  community  or  a  larger 
portion  of  it  should  benefit  by  the  improvement,  providing  the 
general  public  interest  and  convenience  are  subserved.13 

A  use  which  may  be  monopolized  or  absorbed  by  the  few, 
and  from  which  the  general  public  must  be  excluded,  is  not  a 
public  use.14 

While  the  use  or  benefit  must  be  in  common,  yet  the  fact 
that  all  who  wish  may  avail  themselves  of  the  improvement, 
will  not  of  itself  determine  its  character  as  public.15 

PRIVATE  PROPERTY  CANNOT  BE  TAKEN  FOR  A  PRIVATE 

USE.  is 

The  State  has  no  right  to  take  the  property  of  one  citizen 
and  give  it  to  another,  with  or  without  compensation. 

"Gilmer  vs.  Lime  Point,  18  Cal.,  229. 

McQuillen  vs.  Hatton.  42  Ohio  St.,  202. 
18Talbot  vs.  Hudson,  16  Gray,  417. 

Hartwell  vs.  Armstrong.  19  Barb.  (N.  Y.),  166. 
"Board  of  Health  vs.  Van  Hoesen,  87  Mich.,  533. 
1;Pittsburg,  W.  &  Ky.  Ry.  Co.  vs.  Iron  Works,  31  W.  Va.,  710;  2 

L.  R.  A.,  680 
"Welton  v«.  Dicknon,  38  Neb.,  767;  22.    I  .  R.  A.,  496. 

The  legislature  of  Nebraska  passed  a  statute  providing  that  when 
the  lands  of  any  person  shall  be  surrounded  and  shut  off  from  a  pub- 
lic highway  by  the  lands  of  another,  who  refuses  to  allow  such  person 
a  private  road  to  and  from  his  land,  the  county  board,  on  petition  of 
the  owner  of  the  enclosed  land,  should  appoint  three  commissioners 
to  lay  out  a  road  and  assess  the  damages.  The  defendants  in  this 
proceeding  appointed  a  commission  to  lay  out  a  road  over  complain- 
ant Welton's  land,  under  the  statute.  Thereupon  Welton  commenced 
this  proceeding  to  restrain  defendants  from  laying  out  such  a  road, 
and  obtained  a  decree  in  the  lower  court. 

The  Supreme  Court  affirmed  the  decision  of  the  lower  court,  and 
held  that  the  constitutional  provision  "the  property  of  no  person  shall 
be  taken  for  public  use  without  just  compensation,"  prohibits  by  im- 
plication the  taking  of  private  property  for  any  private  use  what- 
ever, without  the  consent  of  the  owner;  that  the  statute  under  which 
defendants  proposed  to  act.  contemplated  the  establishment  of  a  way 
for  the  private  use  and  benefit  of  an  individual  and  not  of  the  public; 
and  that  therefore  the  statute  was  void. 


476  TITLE   BY   ALIENATION. 

No  necessity,  however  great,  will  warrant  the  taking  of  pri- 
vate property  for  a  public  use,  without  just  compensation  to 

the  owner, 
l 

WHO  MAY  EXERCISE  THE  POWER. 

The  power  of  eminent  domain  may  be  exercised  by  any  in- 
dependent government  as  an  incident  of  its  sovereignty.17 
Thus,  a  State  may  exercise  this  right  within  its  own  territorial 
limits.  But  the  State  may  not  condemn  land  for  other  than  a 
state  pu»rpose.  Thus,  it  was  held  in  Michigan  that  the  State,  by 
virtue  of  its  eminent  domain,  had  no  authority  to  condemn  pri- 
vate lands,  writhin  its  boundaries,  for  the  purpose  of  turning 
the  same  over  to  the  United  States,  for  the  erection  of  light- 
liouses  thereon.18 

Eminent  domain  may  also  be  exercised  by  the  United  States 
government,  within  the  several  States,  so  far  as  it  is  necessary 
to  the  enjoyment  of  the  powers  conferred  upon  it  by  the  con- 
stitution.19 Thus,  the  federal  government  may  condemn  land 
for  the  purpose  of  erecting  and  maintaining  forts,  arsenals, 
navy  yards,  lighthouses,  custom-houses  and  other  public  uses.20 

In  the  absence  of  constitutional  limitations,  the  power  of 
the  government  to  invoke  the  exercise  of  the  right  of  eminent 
domain  may  be  delegated  by  the  government  to  individuals,  or 
to  private  or  municipal  corporations.21 

Familiar  instances  of  the  delegation  of  this  power  are  found 
in  the  authorization  of  railroads  to  condemn  rights  of  way,  or 
of  a  municipal  corporation  to  take  land  for  purpose  of  opening 
highways.22 

"U.  S.  vs.  Jones,  109  U.  S.,  513. 
"Trombley  vs.  Humphrey,  23  Mich.,  471. 
"Ableman  vs.  Booth,  21  How.  (U.  S.),  523. 
'"Kohl  vs.  U.  S.,  91  U.  S.,  367. 

Trombley  vs.  Humphrey,  23  Mich.,  471. 
21Old  Colony  R.  Co.  vs.  Framingham  Water  Co.,  153  Mass.,  561; 

13  L.  R.  A.,  332. 
"Olcott  vs.  Fond  du  Lac  Co.,  16  Wall.,  678. 


TITLE   BY   ALIENATION.  477 

The  State  of  course  cannot  delegate  any  power  which  it  does 
not  possess.  It  cannot,  therefore,  delegate  the  right  to  take 
property  for  any  other  purpose  than  public  use  or  benefit.23 

WHAT  PROPERTY  MAY  BE  TAKEN. 

EVEBY  SPECIES  OF  PROPERTY,  REAL  OR  PERSONAL, 
MAY  BE  TAKEN  BY  EMINENT  DOMAIN. 

The  State  may  condemn  realty,  personalty  and  all  interests 
growing  out  of  them,  such  as  easements,  franchises,  and  con- 
tract interests. 

In  a  few  cases  the  statute  delegating  the  power  contains 
provisions  exempting  certain  property  from  the  power  granted. 

It  is  competent  for  the  legislature  to  authorize  the  taking 
of  the  title  in  fee  of  real  property  condemned. 

This  is  sometimes  done;  but  ordinarily  the  donee  of  the 
power  is  authorized  only  to  acquire  an  easement.24 

Thus,  it  was  held  under  a  certain  act  authorizing  a  railroad 
to  acquire  a  right  of  way,  "and  enjoy  the  same  as  long  as  it  is 
used  for  the  purposes  of  the  road  and  no  longer,"  that  the  com- 
pany acquired  only  an  easement,  and  that  the  owner  of  the  fee 
might  use  the  land  in  any  way  not  inconsistent  with  its  use  by 
the  company.25  If  an  easement  only  is  acquired,  on  the  discon- 
tinuance or  abandonment  of  the  use,  the  property  and  right  of 
enjoyment  reverts  to  the  owner  of  the  fee.26 

THE  PROPERTY  TAKEN  MUST  BE  WITHIN  THE  TERRI- 
TORIAL LIMITS  OF  THE  GOVERNMENT  EXERCISING  THE 
RIGHT  OF  EMINENT  DOMAIN. 

"Welton  vs.  Dickson,  38  Neb.,  767;  22  L.  R.  A.,  496. 
"Illinois  C.  R.  Co.  vs.  Chicago.  141  111.,  586;  17  L.  R.  A..  530. 
;iEast  Tennessee  R.  R.  Co.  vs.  Telford's  Executors,  89  Tenn.,  293; 
X)  L.  R.  A.,  855 

"Pittsburgh  R.  Co.  vs.  Bruce,  102  Pa.  St.,  23. 
Kansas  Central  R.  R.  Co.  vs.  Allen.  22  Kan.,  285. 
Gurney  vs.  Minneapolis  Elevator  Co.,  63  Minn.,  70;   30  L.  R.  A., 
534. 


478  TITLE   15 Y   ALIENATION. 

COMPENSATION. 

The  constitutions  of  the  United  States  and  of  most  of  the 
States  provide  that  private  property  shall  not  be  taken  for  pub- 
lic uses  without  just  and  adequate  compensation. 

In  many  instances  the  payment  of  compensation  is  a  condi- 
tion precedent  to  the  vesting  of  the  title,  and  the  right  to  pos- 
session does  not  arise  until  full  payment  has  been  made.27 

Under  other  statutes  payment  is  not  a  condition  precedent, 
but  in  such  States  compensation  must  be  made  within  a  rea- 
sonable time  after  entry. 

TAX  TITLES. 

The  power  to  tax  is  one  which  is  inherent  in  every  govern- 
ment. It  is  the  duty  of  every  person  to  bear  his  just  propor- 
tion of  the  public  burden. 

This  obligation  to  pay  differs  from  that  of  an  ordinary  debt, 
in  that  it  does  not  arise  out  of  a  contract.  The  taxes  are 
assessed  against  the  land  and  made  a  lien  on  it.  On  the  failure 
of  the  owner  to  pay  the  tax,  the  land  is  sold,  and,  if  all  the 
proceedings  have  been  regular,  a  good  title  is  acquired  by  the 
purchaser  after  the  time  for  redemption  has  expired. 

A  TAX  TITLE  IS  ONE  ACQUIRED  AT  A  SALE  OF  PROPERTY 
FOR  THE  NON-PAYMENT  OF  TAXES. 

In  order  that  the  title  acquired  may  be  valid,  the  require- 
ments of  the  statutes  must,  as  a  rule,  be  complied  with  in  every 
respect.  Any  material  variance  from  the  requirement  of  the 
statute  renders  the  sale  invalid. 

If  all  the  requisites  of  the  statute  have  been  complied  with 
and  the  time  for  redemption  has  expired,  the  purchaser  in  most 

"Martin  vs.  Tyler,  4  N.  D.,  278;  25  L.  R.  A..  838. 
Turnpike  Road  vs.  Railway  Co,,  177  Pa.,  585. 
Searle  vs.  Lead,  10  S.  D..  312;  39  L.  R.  A.,  345. 


TITLE   BY   ALIENATION.  479 

States  acquires  a  title  in  fee  simple  to  the  property,  free  from 
all  claims  or  liens  on  the  property.28  His  title  differs  from  one 
acquired  at  an  execution  or  judicial  sale,  in  that  a  purchaser  at 
the  latter  acquires  only  the  title  of  the  person  whose  interest 
is  sold;  but  in  a  tax  sale  there  is  no  privity  between  the  pur- 
chaser and  a  prior  owner.29  In  a  few  States  a  different  rule 
prevails,  and  a  purchaser  at  a  tax  sale  acquires  only  the  title 
of  the  delinquent  owner.30 

At  the  common  law  the  deed  of  the  proper  officer  is  not 
prima  facie  evidence  that  the  statutes  have  been  complied 
with,  and  is  not  evidence  of  itself  sufficient  to  prove  title.  Ad- 
ditional evidence  must  be  offered  to  show  that  all  the  proceed- 
ings have  been  regular.31 

In  some  States  this  rule  has  been  modified  to  this  extent  that 
the  recitals  in  a  tax  deed  will  be  presumed  to  be  correct.32 

In  other  States  the  common  law  rule  has  been  changed  by 
statute  so  that  a  tax  deed  is  prima  facie  evidence  that  all 
proceedings  upon  which  it  is  based  are  regular.33 

In  these  States  the  burden  of  proof  is  on  the  one  contesting 
the  title  to  show  some  non-compliance  with  some  statutory  re- 
quirements. 

SALES  BY  ADMINISTRATORS,  EXECUTORS  OR  GUARDIANS. 

The  statutes  of  most  States  provide  that  when  the  personal 
property  of  the  deceased  is  insufficient  to  pay  the  debts  of  the 
estate,  the  realty  of  which  the  deceased  died  seised,  or  some 

28Robbins  vs.  Barren,  32  Mich.,  36. 
29Hussman  vs.  Durham,  165  U.  S.,  144. 
"Anderson  vs.  Post,  Tenn.,  38  S.  W.,  283. 
"Lattirner  vs.  Lovett,  2  Doug.  (Mich.),  204. 
'"Livingston  vs.  Hudson,  85  Ga.,  835. 
"Cucullu  vs.  Brakenridge,  49  La.  Ann.,  1445. 

Richard  vs.  Carrie,  145  Ind.,  49.  ; 

Peebles  vs.  Taylor,  118  N.  C..  165. 


480  TITLE   BY   ALIENATION. 

portion  of  it,  may  be  sold  and  the  proceeds  applied  to  the  sat- 
isfaction of  his  debts. 

These  statutes  usually  provide  that  the  administrator  may 
petition  the  probate  or  surrogate  court  having  jurisdiction 
over  such  real  estate,  to  obtain  a  license  to  sell  the  property. 
The  acts  of  the  administrator  in  making  the  sale  under  such  a 
license,  must  substantially  conform  to  the  requirements  of  the 
statute  of  the  State  in  which  the  sale  takes  place. 

GUARDIAN  SALES. 

There  are  similar  provisions  in  most  States  authorizing,  for 
certain  purposes,  the  sale  of  the  interest  in  realty  of  infants, 
married  women,  and  of  insane  persons. 

In  some  States  it  has  been  held  that  a  court  of  Chancery, 
under  its  general  jurisdiction  over  the  estates  of  infants,  where 
it  is  clearly  for  the  interest  of  the  infant,  might  order  the  con- 
version of  an  infant's  real  estate  into  personal  property.34 

In  other  States  it  has  been  held  that  the  guardian  could  only 
convey  his  ward's  real  estate  in  those  cases  provided  for  by 
statute.36 

"Hale  vs.  Hale,  146  111.,  227;  20  L.  R.  A.,  247. 
"Wilson  vs.  Hughes,  39  L.  R.  A.,  292. 


CHAPTER  III. 

TITLE  BY  VOLUNTARY  ALIENATION. 

TITLE  BY  DEED. 

In  order  to  transfer  the  title  to  real  property  by  deed,  the 
following  essentials  must  exist: 

1.  THERE    MUST   BE    PARTIES   CAPABLE    OF    ENTERING 
INTO  A  VALID  CONTRACT. 

The  requisites  as  to  the  capacity  of  holding  and  conveying 
property  is  discussed  elsewhere. 

2.  THERE  MUST  BE  AN  INTEREST  IN  THE  REAL  PROP- 
ERTY WHICH  IS  THE  SUBJECT  MATTER  OF  THE  CONTRACT. 

In  other  w'ords,  there  must  be  a  grantor,  a  grantee  and  a 
thing  granted. 

3.  THERE     MUST    BE   A   WRITING   EXECUTED     BY    THE 
PARTY  TO  BE  CHARGED,  OR  HIS  DULY  AUTHORIZED  AGENT 
AND  ATTESTED,  AND,  IN  SOME  STATES,  ACKNOWLEDGED  IN 
THE   MANNER  REQUIRED  BY  THE  LAW  OF  THE  STATE  IN 
WHICH  THE  PROPERTY  IS  SITUATED. 

The  statute  of  frauds  requires  that  no  conveyance  of  an  in- 
I r*rost  in  real  property,  except  a  leasehold  interest  for  less 
than  a  year,  shall  be  made,  except  by  an  instrument  in 
writing.  The  instrument  of  conveyance  is  usually  called  a 
making  of  a  deed.  l»y  statute,  in  many  States,  witnesses  are 
now  necessary.  In  some  States  no  witnesses  are  required  if 
the  deed  is  properly  acknowledged.1  In  other  States  two  wit- 


'This  is  the  rule  in  California,  Colorado,  Illinois,  Indiana,  Iowa, 
Kansas,  Kentucky,  Maine,  Massachusetts,  Mississippi,  Missouri,  Mon- 
tana, Nevada.  New  Jersey,  New  Mexico.  New  York,  North  Carolina. 
Pennsylvania,  Rhode  Island,  South  Dakota,  Tennessee,  Texas,  Virginia, 
Washington  and  West  Virginia. 

481 


482  TITLE   BY   VOLUNTARY    ALIENATION. 

nesses  are  required  in  addition  to  the  acknowledgment;2  but 
in  some  States  onlv  one  witness  is  necessary.3  In  some  States 

x 

the  requirements  as  to  witnesses  are  not  necessary  to  the 
validity  of  the  deed  as  between  the  parties,  but  only  for  the 
purpose  of  registration. 

The  essentials  of  a  valid  deed  will  be  discussed  hereafter. 

4.  THE  WHITING  MUST  CONTAIN  APT  WORDS  OF  CON- 
VEYANCE. 

As  expressed  by  Blackstone,  "The  matter  written  must  be 
legally  or  orderly  set  forth;  that  is,  there  must  be  words  suffi- 
cient to  specify  the  agreement  and  bind  the  parties;  which 
sufficiency  must  be  left  to  the  courts  of  law  to  determine."4 

5.     THE  WRITING  MUST  BE  DELIVERED. 

A  deed  takes  effect  from  the  date  of  its  delivery.  In  the 
absence  of  evidence  to  the  contrary,  a  deed  will  be  presumed 
to  have  been  delivered  at  the  date  it  bears.  In  order  to  con- 
stitute a  good  delivery,  it  is  essential  that  the  deed  should  be 
placed  beyond  the  control  of  the  grantor.  It  is  not  essential 
that  the  delivery  should  be  made  to  the  grantee  in  person;  a 
delivery  to  a  third  person  for  him  is  sufficient,  when  the 
grantor  has  not  power  to  recall  the  deed.5  It  is,  however,  es- 
sential that  the  delivery  should  be  with  the  assent  of  the 
grantor.  If  the  deed  is  stolen,  or  comes*  into  the  hands  of  the 
grantee  without  the  consent  of  the  grantor,  there  is  not  a  legal 
delivery.  So,  the  delivery  of  a  deed,  after  the  death  of  the 
grantor,  when  not  expressly  authorized,  does  not  constitute  a 

2This  is  the  rule  in  Connecticut,  Florida,  Georgia,  Michigan,  Min- 
nesota, New  Hampshire,  Ohio,  Oregon,  South  Carolina,  Utah,  Vermont 
and  Wisconsin. 

'This  is  the  rule  in  Alabama,  Arkansas,  Delaware,  Idaho,  Mary- 
land, Nebraska  and  Wyoming. 

42  Blk.,  299. 

•Cook  vs.  Patrick,  135  111.,  499;  11  L.  R.  A.,  593. 


TITLE   BY    VOLUNTARY    ALIENATION.  483 

valid  delivery.6  So  a  delivery  by  a  grantor  to  his  own  agent, 
intended  for  one  who  has  no  knowledge  of  the  grant,  is  not  a 
valid  delivery  to  the  latter.  A  delivery  of  a  deed  for  record, 
though  not  known  by  the  grantee,  is,  if  followed  by  his  assent, 
a  good  delivery. 

A  DELIVEBY  IN  ESCROW  IS  THE  DELIVERY  OF  A  DEED 
TO  A  THIRD  PERSON,  TO  BE  HELD  BY  HIM  UNTIL  THE  PER- 
FORMANCE OF  SOME  CONDITION,  OR,  THE  HAPPENING  OF 
SOME  EVENT,  AND  THEN  TO  BE  DELIVERED  TO  THE 
GRANTEE  AND  TO  TAKE  EFFECT  AS  A  DEED. 

A  delivery  of  a  deed  in  escrow  has  no  effect  until  the  con- 
dition has  been  performed  or  the  eA'ent  has  happened.  To  con- 
stitute an  escrow,  there  must  be  an  actual  delivery  to  a  third 
person,8  the  control  over  the  deed  must  not  be  in  either  the 
grantor  or  the  grantee,9  and  there  must  be  no  power  to  with- 
draw the  deed  by  the  grantor,  except  on  the  non-performance 
or  non-happening  of  the  conditions  of  the  escrow.  On  the  per- 
formance of  the  conditions  the  grantee  is  entitled  to  receive 
the  deed  and  may  compel  its  delivery.  In  some  States  it  has 
been  held  that  on  the  performance  of  the  conditions,  a  con- 
structive delivery  takes  place,  and  that  no  actual  delivery  is 
necessary.10  As  a  general  rule,  on  the  performance  of  the  con- 


"Porter   vs.   Woodhouse,   59   Conn.,  508;  13  L.  H.  A..  «4. 

Mrs.  Julia  Hinman  in  her  lifetime  and  several  years  prior  to  her 
death  made  out  a  deed  of  a  house  to  Mrs.  Porter.  The  deed  was 
properly  signed  and  executed,  but  was  kept  by  Mrs.  Hinman  in  a 
box  with  other  papers. .  The  grantee  never  knew  of  the  deed  until  after 
the  death  of  Mrs.  Hinman.  The  Supreme  Court  held  that  no  estate 
passed,  "The  delivery  of  a  deed  is  as  essential  to  the  passing  of  the 
title  to  the  land  described  in  it,  as  is  the  signing  of  it  or  the  acknowl- 
edgment. It  is  the  final  act  without  which  all  other  formalities  are 
ineffectual.  To  constitute  a  delivery,  the  grantor  must  part  with  the 
legal  possession  of  the  deed  and  of  all  right  to  retain  it.  The  present 
and  future  dominion  over  the  deed  must  pass  from  the  grantor." 

"Peck  vs.  Rees,  7  Utah,  467;  13  L.  R.  A.,  714. 

Lee  vs.  Fletcher,  46  Minn.,  49,  12  L.  R.  A.,  171. 

•Darling  vs.  Butler,  45  Fed.,  332;  10  L.  R.  A.,  4<>9. 

"Prutsman  vs.  Baker,  30  Wis.,  644. 


484  TITLE   }»,Y    VOLUNTARY    ALIENATION. 

dition,  the  grantee's  title  will  relate  back  to  the  time  of  the 
delivery  in  escrow. 

6.  IN  MOST  STATES,  BY  STATUTE,  TO  BE  EFFECTUAL  AS 
AGAINST  PURCHASERS  OR  ENCUMBRANCERS  FOR  VALUE 
WITHOUT  NOTICE,  A  DEED  MUST  BE  RECORDED  AS  RE 
QUIRED  BY  LAW. 

_At  the  common  law,  the  registration  of  a  deed  was  not 
necessary  or  possible.  In  the  United  States,  while  a  deed  is 
valid  as  between  the  parties  without  registration,  an  unre- 
corded deed  is  void  as  to  subsequent  bona  fide  purchasers  or 
encumbrancers  without  notice.  In  some, States  an  unrecorded 
deed  is  also  A'oid  as  to  subsequent  creditors  of  the  grantors 
without  notice.  Once  a  deed  entitled  to  record,  is  properly 
recorded,  any  one  dealing  with  the  property  has  constructive 
notice  of  its  contents.  An  instrument  not  entitled  to  record, 
is  not  notice  to  subsequent  purchaser  or  encumbrancer  unless 
there  is  actual  knowledge  of  the  existence  of  the  deed. 

The  student  ought  to  consult  the  statutes  of  his  own  State 
in  this  regard. 

DEEDS. 

In  our  law,  the  word  deed,  in  its  broad  signification  is  de- 
fined as  follows: 

A  DEED  IS  AN  INSTRUMENT  IN  WRITING,  WHICH,  HAV- 
ING BEEN  SEALED  AND  DELIVERED  BY  THE  PARTY  SIGN- 
ING AND  DELIVERING,  CONFERS  OR  SECURES  SOME  VAL- 
UABLE RIGHT  IN  REAL  PROPERTY,  TO,  OR  IN,  THE  PARTY 
FOR  WHOSE  BENEFIT  IT  IS  DELIVERED. 

Under  this  definition  it  will  be  noticed  that  many  instru- 
ments must  be  classified  as  deeds  which  do  not  come  within  the 
definition  of  a  deed,  as  generally  understood  in  the  popular 
speech  of  the  present  day.  Thus,  in  the  sense  in  which  we  have 
defined  a  deed,  a  contract  under  seal  to  sell  land  is  a  deed, 
although  the  question  is  constantly  asked  in  the  courts,  "Have 
you  a  deed  or  only  a  contract?"  And,  so,  a  lease  under  seal  is 
as  truly  a  deed,  within  the  above  definition,  as  an  instrument 


TITLE   BY   VOLUNTARY   ALIENATION.  485 

under  seal  which  conveys  a  fee  in  land.  But,  with  thue  progress 
of  time,  words  lose  their  old  meanings  and  acquire  new  ones. 
In  one  of  the  oldest  editions  of  the  English  Bible,  St.  Paul  is 
made  to  describe  himself  as,  "I,  Paul,  a  knave  of  Jesus  Christ." 
This  was  a  perfectly  correct  translation  at  the  time  that  Wy- 
cliffe  made  the  translation,  but  in  the  course  of  time  the  word 
"knave"  acquired  a  different  meaning,  and  when  King  James' 
translators  made  the  translation,  which  now  generally  obtains, 
they  changed  the  language  to,  "I,  Paul,  a  servant  of  Jesus 
Christ." 

For  the  purpose  of  this  volume,  we  define  a  deed  as  follows : 

A  DEED  IS  A  WRITTEN  INSTRUMENT  SIGNED  AND  DE- 
LIVERED, WHICH  CONVEYS  AN  INTEREST  IN  REAL  PROP- 
ERTY GREATER  THAN  A  LEASEHOLD  OR  A  CONTRACT  IN- 
TERHST.  * 

At  the  common  law  no  written  instrument  was  a  deed, 
or  specialty,  unless  it  was  sealed.  But  by  statute  in  many 
States  unsealed  instruments  have  the  same  force  and  effect 
as  sealed  instruments. 

The  subject  of  seals  under  the  common  law  and  in  the  dif- 
ferent States  is  fully  treated  in  that  part  of  this  book  which 
deals  with  leases  under  seal,  and  as  the  law  on  this  subject  is 
the  same  with  regard  to  deeds,  it  is  unnecessary  to  recapitu- 
late it  here. 

The  following  is  a  common  form  of  a  warranty  deed  in  use 
in  this  country: 

FORM  OF  DEED. 

Indenture.  THIS  INDENTURE.  Made  this  seventh 

Date 

Parties.  day   of  December,   in   the   year   of  Our 

Lord   one    thousand    nine  hundred    and 

two. 

BETWEEN  A.  B.,  party  of  the  first  part, 

and  C.  D.,  party  of  the  second  part. 


486 


TITLE   BY    VOLUNTARY    ALIENATION. 


Consideration. 
Receipt. 


Operative  words 
of  conveyances. 


Words  of 
Limitation. 


Description 
of  Property. 


Further  words  of 
Limitation. 


WITNESSETH, 

That  the  said  party  of  the  first  part, 
for  and  in  consideration  of  the  sum  of 
one  thousand  dollars,  to  him  in  hand 
paid  by  the  said  party  of  the  second  part, 
the  receipt  whereof  is  hereby  confessed 
and  acknowledged. 

Has  granted,  bargained,  sold,  remised, 
released,  aliened  and  confirmed,  and  by 
these  presents  does  hereby  grant,  bar- 
gain, sell,  remise,  release,  alien  and  con- 
firm unto  the  said  party  of  the  second 
part,  and  to  his  heirs  and  assigns,  FOR- 
EVER 

All  that  certain  piece  or  parcel  of  land, 
known  as  Lot  No.  Four  (4)  of  Block 
Thirty-three  (33)  of  the  Cass  Farm  (so 
called)  in  the  City  of  Detroit,  County  of 
Wayne  and  State  of  Michigan. 

TOGETHER  with  all  and  singular  the 
hereditaments  and  appurtenances  there- 
unto belonging  or  in  any  wise  appertain- 
ing; and  the  reversion  and  reversions,  re- 
mainder, remainders,  rents,  issues  and 
profits  thereof;  and  all  the  estate,  right, 
title,  interest  and  demand  whatsoever, 
of  the  said  party  of  the  first  part,  either 
in  Law  or  Equity,  of,  in  and  to  the  above 
bargained  premises,  with  the  heredita- 
ments and  appurtenances; 


TITLE   BY   VOLUNTARY    ALIENATION. 


487 


Habendum 
Clause. 


Covenant  of 
Warranty. 


Covenant  against 
Encumbrances. 


Covenant  for 
Quiet  Possession. 


Attestation 
Clause. 


TO  HAVE  AND  TO  HOLD,  the  said 
premises  as  above  described,  with  the 
appurtenances  unto  the  said  party  of  the 
second  part,  and  to  his  heirs  and  assigns, 
FOREVER. 

And  the  said  part}'  of  the  first  part, 
for  himself  and  his  heirs,  executors  and 
administrators,  does  covenant,  grant, 
bargain  and  agree  to  and  with  the  said, 
party  of  the  second  part,  his  heirs  and 
assigns,  that  at  the  time  of  the  eusealing 
and  delivery  of  these  presents  he  is  well 
seised  of  the  premises  above  described, 
as  of  good,  sure,  perfect,  absolute  and  in- 
defeasible estate  of  inheritance  in  the 
law  in  Fee  Simple. 

And  that  the  said  Lands  are  free  from 
all  encumbrances  whatever: 

And  the  above  bargained  premises  in 
the  quiet  and  peaceable  possession  of  the 
said  party  of  the  second  part,  his  heirs 
and  assigns,  against  all  and  every  person 
or  persons,  lawfully  claiming,  or  to  claim, 
the  whole  or  any  part  thereof,  he  and  his 
heirs  will  forever  WARRANT  AND  DE- 
FEND. 

IN    WITNESS    WHEREOF,    The    said 
party  of  the  first  part,  has  hereunto  set 
his  hand  and  seal  the  day  and  the  year 
first  above  written. 
(L.  S.) 


488  TITLE   BY   VOLUNTARY   ALIENATION. 

Signed,  Sealed  and  Delivered  in  Pres- 
ence of 


STATE  OF  MICHIGAN, 
COUNTY  OF  WAYNE, 

Acknowledgement.  On  this  Seventh  day  of  December,  in 

the  year  one  thousand  nine  hundred  and 

two,  before  me, 

a ,  in  and 

for    said    County,    personally    appeared 


to  me  known  to  be  the  same  person  de- 
scribed in  and  who  executed  the  within 
instrument,  who  acknowledged  the  same 

to  be free  act  and  deed. 

This  form  contains  all  the  essentials  of  a  valid  deed.  All 
of  the  covenants  mentioned  are,  however,  not  essential,  but  are 
simply  those  found  in  the  usual  warranty  deed.  A  quit-claim 
deed  differs  from  the  above  form  in  that  it  contains  only  words 
of  conveyance  without  any  covenants. 

At  the  common  law  deeds  were  divided  into  two  classes, 
deeds  poll,  that  is,  deeds  executed  only  by  the  grantor,  and  in- 
dentures, that  is,  deeds  executed  by  both  grantor  and  grantee. 
The  word  indenture  is  traced  to  the  Latin  word  for  teeth.  If 
a  person  bites  into  a  substance  like  wax  his  teeth  make  an 
irregular  line,  wThich  cannot  be  duplicated  by  an  impression 
made  by  anybody  else's  teeth.  An  indenture  was  a  written  in- 
strument executed  in  separate  parts  on  the  same  piece  of  paper 
or  parchment,  each  part  being  executed  by  the  party  who  was 
bound  by  its  covenants,  and  these  parts  were  cut  apart  by  a 
jagged  line.  Usually  there  was  something  written  across  the 
line  to  be  cut.  When  the  two  parts  were  brought  into  court, 


TITLE   BY   VOLUNTARY   ALIENATION.  489 

if  they  fitted  together  on  this  jagged  line,  it  was  readily  seen 
that  they  were  the  corresponding  parts  of  the  same  instrument. 
But  this  has  long  been  a  thing  of  the  past.  While  many 
deed*,  called  indentures,  contain  covenants  to  be  performed  by 
the  grantee,  yet  they  are  not  executed  by  the  grantee.  But  it 
is  held  that  the  acceptance  of  the  deed  by  the  grantee  is  equiv- 
alent to  an  express  agreement  by  him  to  fulfil  those  obligations 
imposed  upon  him  by  the  deed.  A  familiar  example  is  a  deed 
of  land  subject  to  a  mortgage,  in  which  it  is  recited  that  the 
.amount  due  on  the  mortgage  is  a  part  of  the  consideration  for 
the  deed,  and  that  the  grantee  agrees  to  pay  the  mortgage.  In 
such  a  case  the  grantee  by  accepting  the  deed  binds  himself 
not  only  to  his  grantor,  but  also  to  the  mortgagee  to  pay  the 
mortgage.  And  if,  on  a  foreclosure  sale,  the  property  does  not 
bring  enough  to  pay  the  mortgage  the  grantee  is  held  person- 
ally liable  for  the  deficiency,  although  he  never  agreed  to  pay 
the  mortgage  except  by  accepting  a  deed  which  recited  that  he 
had  promised  to  pay  it.  At  the  present  day  wrhat  little  dis- 
tinction remains  between  deeds  poll  and  indentures  is  this: 
Deeds  poll  are  instruments  which  impose  no  obligations  upon 
the  grantee;  indentures  impose  obligations  upon  both  parties. 

DATE  AND  PARTIES. 

The  subject  of  a  date  is  treated  in  discussing  written  leases. 
All  that  is  said  there  applies  to  deeds.  This  is  also  true  with 
regard  to  the  subject  of  the  parties  to  a  deed.  The  parties 
must  be  identified  by  the  instrument  itself,  but  where  it  is 
plain  from  the  instrument  itself  who  is  grantor  and  who  is 
grantee,  the  courts  will  give  it  effect,  although  neither  of  the 
parties  to  the  instrument  is  expressly  designated  as  grantor 
or  grantee.11 

"Newton  vs.  McKay,  29  Mich.,  1. 


490  TITLE   BY   VOLUNTARY   ALIENATION. 

A  deed  to  a  fictitious  grantee  conveys  no  title.12 

CONSIDERATION. 

It  was  a  doctrine  of  the  common  law  that  in  a  deed  of 
bargain  and  sale,  a  consideration  must  be  expressed,  and  the 
same  was  true  as  to  a  covenant  to  stand  seised  to  the  use  of 
another.  But  a  simple  grant  did  not  require  any  consideration 
and  therefore  the  statement  of  a  consideration  was  unneces- 
sary. But  the  rule  as  to  the  necessity  of  expressing  a  consid- 
eration is  now  practically  obsolete.  It  will  be  noticed,  also, 
that  in  the  modern  form  of  deed  above  given  there  are  found 
in  the  operative  words  of  conveyance,  words  from  all  the  differ- 
ent forms  of  common  law  conveyances  so  that  using  such  a 
form  there  is  now  no  necessity  to  recite  a  consideration  and  its 
receipt.  The  recital  of  the  amount  of  the  consideration  and  of 
its  receipt  is  prima  facie  evidence  of  its  truth,  but  is  not  con- 
clusive either  as  to  its  amount  or  as  to  the  fact  that  it  has  been 
paid. 

In  the  operative  words  of  conveyance  the  word  grant  is 
equivalent  to  convey;  the  words  "bargain  and  sell"  import  a 
contract  to  convey  for  a  legal  consideration;  the  word  remise 
strictly  construed  imports  that  the  grantor  having  received  his 
title  from  the  grantee  now  restores  it  to  him;  the  word  release 
imports  that  the  grantee  has  already  some  interest  in  the  prop- 
erty, and  the  grantor  now  conveys  or  releases  to  him  his  inter- 
est in  the  same  property;  the  word  alien  imports  the  dissever- 
ance of  the  title  from  the  grantor,  and  the  word  confirm  is 
simply  a  word  of  confirmation  or  acknowledgment  that  the 
title  to  the  property  is  now  in  the  grantee.  In  other  words  its 
use  might  raise  an  estoppel  if  there  were  no  covenants  in  the 
deed  sufficient  for  that  purpose. 

"Weihl  vs.  Robertson,  97  Tenn.,  458;  39  I,.  R.  A.,  423. 


TITLE   BY   VOLUNTARY   ALIENATION.  491 

WORDS  OF  LIMITATION.        , 

If  a  grant  is  made  to  A.  B.  simply  it  is  only  a  grant  for  life, 
for  there  are  no  words  to  show  that  any  other  person  was  to 
have  any  benefit  from  that  grant.  But  when  the  words  are  to 
A.  B.  and  his  heirs  forever,  this  distinctly  shows  that  the 
grantor  intends  to  part  with  his  whole  estate  and  conveys  a 
fee  simple  if  the  grantor  be  seised  in  fee  simple.  But  now  by 
statute  in  some  States  a  simple  grant  to  A.  B.  conveys  all  of 
the  estate  which  the  grantor  has. 

DESCRIPTION  OF  THE  PROPERTY. 

What  has  already  been  said  with  regard  to  the  description 
of  real  property  which  is  the  subject  of  a  written  lease  applies 
with  equal  force  to  the  description  of  real  property  in  deeds. 
But  this  is  hardly  sufficient  for  the  purpose  and  therefore  we 
state  these  additional  rules. 

The  following  description  will  serve  as  an  illustration: 

Beginning  at  a  rock  elm  tree  in  the  northerly  line  of  the 
northwest  quarter  of  the  northwest  quarter  of  section  one  (1) 
in  Township  number  nine  (9)  east,  range  number  four  (4)  north 

in  the  County  of ,  in  the  State  of  Michigan,  forty  (40) 

rods  east  of  the  northwest  corner  of  said  section;  thence  south 
four  and  one-half  (4|)  degrees  east,  sixty  (60)  rods  to  Blackwater 
Lake;  thence  south  eighty-five  (85)  degrees  west,  forty-four  (44) 
rods  to  a  white  oak  tree  in  the  westerly  line  of  said  section; 
thence  northerly  on  said  westerly  line  sixty-five  (65)  rods  to  the 
northwest  corner  of  said  section;  thence  easterly  along  the 
northerly  line  of  said  section  to  the  place  of  beginning,  contain- 
ing nineteen  (19)  acres  of  land. 

Analyzing  this  description  it  will  be  observed: 

1.  It  describes  land  which  has  been  surveyed  by  the  gov- 
ernment. 


492  TITLE    UY    VOLUNTARY    ALIENATION. 

2.  It  refers  to  natural  monuments. 

3.  It  gives  courses  and  distances. 

4.  It  states  the  quantity  of  land  conveyed.    In  such  a  case 
the  following  rules  control: 

4.  It  states  the  quantity  of  land  conveyed.  In  this"  case 
tion  as  established,  whether  correctly  or  incorrectly,  by  the 
government  survey. 

The  first  line  must  follow  the  northerly  line  of  the  section 
as  established  to  the  rock  elm  tree,  whether  it  be  more  or  less 
than  fort>*  (40)  rods. 

The  second  line  must  run  in  the  direction  indicated  until 
it  strikes  Blackwater  Lake,  whether  the  distance  be  more  or 
less  than  sixty  (60)  rods,  and  if  Blackwater  Lake  should  simply 
impinge  on  the  land  attempted  to  be  described,  the  easterly 
line  of  the  tract  must  be  run  to  it  even  if  a  variation  from  the 
course  mentioned  is  necessary. 

The  same  principles  apply  in  running  the  southerly  line  of 
the  tract  to  the  white  oak  tree  in  the  westerly  line  of  the  sec- 
tion. And  the  particulars  enumerated  control  the  statement 
in  the  deed  as  to  the  number  of  acres  intended  to  be  conveyed 
or,  in  other  words  in  identifying  lands  described  in  a  deed. 

1.  MONUMENTS   CONTROL   COURSES  AND  DISTANCES. 

2.  COURSES    AND    DISTANCES    CONTROL    A    STATEMENT 
AS  TO  THE  AMOUNT  OF  LAND  INTENDED  TO  BE  CONVEYED. 

It  will  not  surprise  the  reader  who  has  followed  us  thus 
far  when  we  say  the  words,  "Together  with  all  and  singular 
the  hereditaments  and  appurtenances  thereunto  belonging,  or 
in  any  wrise  appertaining;  and  the  reversion  and  reversions, 
remainder,  remainders,  rents,  issues  and  profits  thereof;  and 
all  the  estate,  right,  title,  interest  and  demand  whatsoever,  of 
the  said  party  of  the  first  part,  either  in  Law  or  Equity,  of,  in 


TITLE    I'.Y    VOU'XTAUY    ALIENATION.  493 

and  to  the  above  bargained  premises,  with  the  hereditaments 
and  appurtenances;*'  are  entirely  superfluous.  A  conveyance 
of  the  land  itself  conveys  everything  that  is  included  in  these 
words.  Formerly  there  were  no  printed  blanks  for  deeds  and 
they  were  engrossed  by  scriveners  and  conveyancers  and  paid 
for  at  so  much  a  folio.  Whether  this  is  the  reason,  or,  out  of 
''abundant  caution,''  that  these  words  were  introduced  into  all 
ancient  deeds,  may  be  a  matter  of  conjecture.  It  is  certainly 
true  that  for  hundreds  of  years  they  have  been  in  "innocuous 
desuetude." 

HABENDUM  CLAUSE. 

The  habendum  clause  which  begins  "to  have  and  to  hold," 
is  not  now  taken  by  the  courts  very  seriously.  They  look  to 
the  operative  words  of  conveyance  to  see  what  estate  is  in- 
tended to  be  conveyed,  and  if  there  is  any  discrepancy  the 
granting  clause  prevails.  At  the  same  time  it  is  always  to  be 
remembered  that  in  construing  deeds  and  all  written  instru- 
ments every  part  of  the  instrument  is  to  be  taken  into  con- 
sideration, and  it  is  the  intent  of  the  law  always  to  construe 
and  give  effect  to  the  instrument  according  to  the  real  under- 
standing and  intent  of  the  parties.  This  intent,  however,  is, 
to  be  gathered  from  the  terms  of  the  instrument  itself,  but 
this  rule  is  subject  to  this  qualification:  that  extraneous 
(aliunde)  evidence  will  be  admitted  to  show  the  nature  and 
extent  of  the  subject  matter  of  the  contract  and  the  situation 
of  the  parties  with  respect  to  it  and  to  each  other  at  the  time 
of  the  making  of  the  contract,  if  the  instrument  is  not  clear 
upon  its  face.  If  it  is,  no  evidence  aliunde  can  be  admitted  in 
a  court  of  law  to  control  or  vary  its  plain  stipulations.  If 
fraud  or  mistake  is  claimed  resort  must  be  had  to  a  court  of 
equity. 


TITLE   BY   VOLUNTARY    ALIENATION. 

COVENANTS  FOR  WARRANTY,  AGAINST  INCUMBRANCES,  AND 
FOR   QUIET  POSSESSION. 

The  nature  of  these  covenants  can  be  best  explained  by 
considering  them  together. 

The  covenant  for  warranty  binds  the  seller  to  give  a  good 
title,  and  the  liability  which  it  creates  is  in  force  until  there  is 
an  actual  disseisin  by  virtue  of  a  superior  title,  and  can  be 
taken  advantage  of  by  any  subsequent  owner  who  gets  his  title 
through  that  deed. 

There  are  in  this  country  various  forms  of  what  is  commonly 
known  as  a  "Warranty  Deed."  Almost  all  deeds  are  made  out 
on  printed  blanks,  which  vary  somewhat  in  form.  These 
forms  contain  not  only  what  is  strictly  known  as  "the  cove- 
nant for  warranty,"  but  also  other  covenants,  the  purpose  of 
which  is  to  give  the  purchaser  a  remedy  against  the  seller  in 
case  the  title  turns  out  to  be  in  any  wise  defective.  Thus,  the 
warranty  deed  often  used  contains,  besides  the  covenant  for 
warranty,  the  covenant  for  seisin,  the  covenant  of  good  right 
to  convey,  the  covenant  for  quiet  enjoyment,  the  covenant 
against  encumbrances,  and,  sometimes,  the  covenant  for  further 
assurance.  These  are  known  collectively  as  the  covenants  for 
title.  A  deed  which  contains  only  the  covenant  of  warranty 
is  not  sufficient  to  assure  the  purchaser  of  a  good  and  unen- 
cumbered title.  In  a  general  way,  it  may  be  said  that  the 
covenant  for  quiet  enjoyment  performs  practically  the  same 
office.  They  are  a  guaranty  against  being  turned  out  of  pos- 
session in  a  suit  brought  by  the  holder  of  a  better  title.  If  at 
any  time  after  the  making  of  a  deed  containing  a  covenant  of 
warrant}',  a  suit  is  brought  to  recover  the  laud  from  one  who 
claims  title  through  this  deed,  he  is  entitled  to  give  notice  of 
this  suit  to  the  person  who  executed  the  warranty  deed,  and 
call  upon  him  to  defend  the  title  which  he  warranted.  If  he 


TITLE   BY   VOLUNTARY   ALIENATION.  495 

fails  to  do  this  successfully  the  judgment  will  be  conclusive 
against  him,  that  the  title  which  he  warranted  was  not  good, 
and  that  the  person  against  whom  the  judgment  is  rendered  is 
entitled  to  recover  damages  for  the  breach  of  the  warranty. 
The  courts  generally  hold  that  the  amount  of  damages  which 
can  be  recovered  are  limited  to  the  price  paid  for  the  land, 
interest  from  the  time  of  the  dispossession,  and  the  costs  of 
defending  the  suit.  Under  the  covenant  for  warranty  there 
can  be  no  recovery  for  improvements  put  on  subsequent  to  the 
purchase.  It  will  be  seen,  therefore,  that  where,  between  the 
time  of  the  purchase  and  the  dispossession,  the  land  has  greatly 
risen  in  value,  or  valuable  improvements  have  been  made  upon 
it  that  the  covenant  for  warranty  is  not  an  adequate  protection 
to  one  who  buys  relying  upon  the  pecuniary  responsibility  of 
the  vendor.  A  covenant  for  warranty  is  one  which  inures 
to  the  benefit  of  any  subsequent  purchaser  who  takes  the 
title  through  that  deed,  or,  as  it  is  expressed  by  the 
courts:  "It  is  a  covenant  which  runs  with  the  land." 
Thus,  if  Jones  gives  Smith  a  warranty  deed,  and  Smith 
sells  to  Brown,  whether  by  quit-claim  or  by  warranty 
deed.  Brown  can  rely  on  the  warranty  which  Jones  gave  to 
Smith,  the  same  as  though  it  were  given  to  himself.  Another 
quality  of  the  covenant  for  warranty  is  this:  If  a  man  gives  a 
warranty  deed,  not  having  a  good  title  at  the  time,  and  he 
afterwards,  by  inheritance  or  purchase,  or  in  any  other  way, 
gets  a  good  title,  this  immediately  inures  to  the  benefit  of  the 
person  to  whom  he  had  before  warranted  the  title,  and  makes 
that  title  good.  The  covenants  for  seisin  and  of  good  right  to 
convey  are  also  guarantees  that  the  seller  has  a  good  title, 
and  if  it  turns  out  that  he  has  not,  the  purchaser  may  recover 
damages  in  a  suit  for  a  breach  of  these  covenants  as  in  a  suit 
for  damages  for  a  breach  of  warranty.  The  chief  difference 


496  TITLE   BY   VOLUNTARY   ALIENATION. 

between  the  covenant  for  seisin  and  the  covenant  for  war- 
ranty is  that  the  covenant  for  warranty  runs  with  the  land, 
and  no  suit  can  be  brought  on  it  until  after  an  actual  dispos 
session,  no  matter  how  bad  the  title  may  be.  A  suit  may  be 
brought  on  the  covenants  for  seisin  and  of  good  right  to  con- 
vey as  soon  as  it  is  discovered  that  the  title  is  bad.  The  pur- 
chaser does  not  have  to  wait  until  he  is  dispossessed.  And 
it  is  generally  held  that  these  covenants  do  not  run  with  the 
land.  Xo  one  can  take  advantage  of  them  except  the  person 
to  whom  the  deed  runs  in  which  they  are  contained.  The 
amount  of  damages  which  can  be  recovered  is  the  same  in  both 
cases.  The  covenant  for  further  assurance  is  not  much  used. 
The  covenant  against  encumbrances  is  a  guarantee  that  there 
is  no  mortgage  or  other  lien  of  any  kind  upon  the  property, 
that  it  is  not  subject  to  a  claim  for  dower,  that  it  is  not  sub- 
ject to  an  existing  lease,  and  generally  that  nobody  has  any 
rights  in  the  property  except  the  seller.  Every  sufficient 
warranty  deed  ought  to  contain  a  covenant  for  seisin  and 
a  covenant  against  encumbrances,  as  well  as  the  covenant 
for  warranty.  A  quit-claim  deed  merely  conveys  whatever  in- 
terest the  seller  has.  It  does  not  warrant  that  he  has  any 
title,  nor  does  it  afford  any  guaranty  against  mortgages  or 
other  encumbrances.  A  person  incurs  no  liability  by  giving  u 
quit-claim  deed  unless  some  fraudulent  purpose  is  involved. 

The  seller  who  gives  a  .warranty  deed  with  a  covenant 
against  encumbrances  is  bound  to  pay  all  taxes  which  arc  a 
lien  upon  the  property  at  the  time  the  deed  is  delivered,  even 
though  the  taxes  are  not  yet  payable.  In  some  of  the  States 
taxes  become  a  lien  as  soon  as  they  are  assessed;  in  others  not 
until  the  taxes  are  payable. 

The  covenant  for  further  assurance  was  used  for  the  pur- 
pose of  casting  upon  the  grantor  the  burden  of  removing  all 


TITLE   BY   VOLUNTARY   ALIENATION.  497 

clouds  from  the  title,  so  as  to  give  the  grantee  a  perfect  record 
title. 

The  law  as  to  the  attestion  clause,  form  of  execution,  wit- 
nesses, etc.,  is  identical  with  the  law  as  to  leases  under  seal, 
and  need  not  be  repeated  here. 


CHAPTER  IV. 

TITLE  BY  DEVISE. 

A  DEVISE  IS  A  DISPOSITION  OF  REAL  PROPERTY  BY  A 
LAST  WILL  AND  TESTAMENT,  TO  TAKE  EFFECT  ON  THE 
DEATH  OF  THE  DEVISOR. 

A  WILL  IS  THE  LEGAL  DECLARATION  OF  A  TESTATOR'S 
INTENTION  WITH  REFERENCE  TO  THE  DISPOSITION  OF 
HIS  PROPERTY,  WHICH  HE  WILLS  TO  BE  PERFORMED 
AFTER  HIS  DEATH. 

When  a  will  is  made  by  a  man,  he  is  called  a  testator;  when 
made  by  a  woman  she  is  called  a  testatrix.  The  terms  will  and 
testament  are  now  practically  synonymous.  The  term  devise, 
as  indicated  by  the  definition,  applies  to  a  transfer  by  will  of 
real  property,  and  the  person  receiving  such  property  is  known 
as  a  devisee.  A  transfer  of  personal  property  by  will  is  usually 
known  as  a  legacy  or  bequest,  and  the  person  receiving  it  i» 
known  as  a  legatee. 

HISTORY. 

Wills  are  of  ancient  origin.  Once  the  right  of  property  be- 
came recognized,  it  became  necessary  to  make  some  regulation 
as  to  its  disposition  on  the  death  of  the  owner.  It  has  already 
been  pointed  out  that  in  the  absence  of  such  a  regulation,  the 
property  would  pass  to  the  first  occupant,  and  thereby  strife 
would  be  engendered  and  the  natural  objects  of  the  deceased's 
bounty  would  in  all  probability  be  left  in  want.  At  an  early 
age  it  was,  therefore,  provided  by  law  that  an  owner  might  by 
an  ante-mortem  statement  provide  for  the  disposition  of  his 
property  after  his  death,  and  that  on  the  failure  of  such  dispo- 

498 


TITLE   BY    DEVISE.  49$ 

sition  that  the  property  should  pass  to  his  next  of  kin  or  heirs, 
as  provided  by  law.  This  right  to  make  a  testamentary  dispo- 
sition of  one's  property  was  recognized  by  the  laws  of  Greece 
and  Kome  and  was  recognized  and  practiced  in  England,  prior 
to  the  Norman  Conquest.  The  right  to  make  a  devise  of  real 
property  was  inconsistent  with  the  feudal  system  and  was  not 
permitted.  Subsequently,  this  prohibition  was  circumvented 
by  a  devise  to  uses,  and  which  uses  were  enforced  by  the  courts 
of  chancery.  Afterwards  when  by  the  statute  of  uses,  the  use 
was  transformed  into  a  legal  estate,  the  feudal  prohibition  was 
complete,  except  in  those  districts,  where  by  custom,  the  testa- 
mentary disposition  of  a  portion  of  a  testator's  property  was 
permitted.  By  the  statute  of  wills,  32,  Henry  VICE,  a  testator, 
was  permitted  to  dispose  of  all  his  property  held  in  free  and 
common  socage  and  two-thirds  of  that  held  in  knight  service. 
By  subsequent  statutes  all  restrictions  on  testamentary  dispo- 
sition were  removed. 

AS  A  GENEBAL  RULE,  IN  THE  UNITED  STATES,  ALL 
PBOPERTY,  WHETHER  REAL  OR  PERSONAL,  CORPOREAL  OR 
INCORPOREAL,  VESTED  OR  CONTINGENT,  LEGAL  OR  EQUI- 
TABLE, MAY  BE  DISPOSED  OF  BY  A  VALID  WILL.  IN  MANY 
STATES  AFTER  ACQUIRED  PROPERTY  MAY  ALSO  BE  DIS- 
POSED OF  BY  A  VALID  WILL.1 

To  this  rule  there  are  some  exceptions.  In  many  States 
the  statutes  provide  that  a  widow  may  elect  to  take  under  the 
will,  or  take  the  share  of  her  husband's  estate  which  she  would 
have  had  if  he  had  died  intestate.  In  the  States  having  such 
statutes  a  devisor  cannot  cut  off  this  right  of  election,  and  on 
the  wife's  election  to  take  under  the  statute,  property  to  the  ex- 
tent of  her  right  will  pass,  not  according  to  the  terms  of  the 
will,  but  as  provided  by  statute.  Neither  can  the  husband  affect 
the  wife's  claim  of  dower  and  homestead.  So  a  testator  can- 
Jacobs  Appeal,  140  Pa.,  268;  11  L.  R.  A.,  767. 


500  TITLE   BY    DEVISE. 

not  devise  his  property  in  such  a  way  as  to  cut  off  the  expense 
of  his  administration,  the  allowance  for  support  for  the  widow 
and  children  during  the  settlement  of  the  estate,  and  the  pay- 
ment of  his  just  debts. 

Since  the  law  permits  the  owner  of  property  to  dispose 
of  it  according  to  his  wish  or  intention,  we  will  now  briefly 
consider  how  such  intention  may  be  legally  declared  and 
evidenced,  and  what  persons  are  capable  of  making  such 
legal  declaration.  It  will  be  readily  seen  that  if  such  wish 
or  intention  were  expressed  only  by  word  of  mouth,  it  would 
rest  solely  in  memory  and  would  be  capable  of  distortion  and 
nullification  by  persons  of  poor  memory  or  wicked  heart. 

In  order  that  the  wish  or  intent  of  the  testator  may  be  ac- 
curately determined,  the  law  requires  that  it  shall  be  formally 
declared  in  writing,  and  provides  that  certain  safeguards  shall 
attend  the  execution  of  such  formal  declaration. 

IT  IS  ONLY  WHEN  THE  INTENTION  OF  THE  TESTATOR 
IS  EXPRESSED  IN  A  FORMAL  DECLARATION,  AND  IS  EXE- 
CUTED IN  THE  MANNER  REQUIRED  BY  LAW,  THAT  THE 
LAW  REGARDS  IT  AS  THE  INTENTION  OF  THE  DECEASED. 

IN  THE  ABSENCE  OF  AN  INTENT  FORMALLY  EXPRESS- 
ED AND  EXECUTED  IN  THE  MANNER  REQUIRED  BY  LAW, 
THE  LAW  CONCLUSIVELY  PRESUMES  THAT  THE  DECEASED 
INTENDED  THAT  HIS  OR  HER  PROPERTY  SHOULD  DESCEND 
ACCORDING  TO  THE  STATUTES  OF  DESCENT  OR  DISTRIBU- 
TION. 

The  essentials  as  to  the  expression  of  the  testator's  wish  in 
a  formal  declaration  and  the  requirements  as  to  the  execution 
of  the  same  will  be  found  in  the  following  propositions : 

1.  IN  ORDER  TO  BE  THE  VALID  WILL  OF  THE  TESTA- 
TOR, THE  FORMAL  DECLARATION  MUST  BE  THE  TESTA- 
TOR'S WISH. 

It  is  impossible  to  discuss  at  any  length  all  the  essentials 
of  a  valid  will  or  the  numerous  decisions  growing  out  of  the 


TITLE   BY    DEVISE.  501 

statutory  regulations.  The  most  that  we  can  do  is  to  briefly 
call  attention  to  a  few  of  the  most  important  principles  and 
refer  him  to  the  treatises  and  digests  on  this  subject. 

The  only  purpose  of  the  law  in  providing  for  the  formal 
execution  of  a  will,  is  in  order  that  the  intention  of  the  de- 
ceased may  be  ascertained  with  certainty.  It  follows  that  if 
the  declaration  does  not  contain  the  testator's  wish,  it  is  of  no 
legal  force  or  value. 

2.  THE  TESTATOB  MUST  BE  ONE  WHOM  THE  LAW  DEEMS 
CAPABLE  OF  HAVING  SOME  DEFINITE  AND  INDEPENDENT 
WISH  OR  DETERMINATION,  IN  REGARD  TO  THE  DISPOSI- 
TION OF  HIS  PROPERTY. 

As  regards  the  capacity  of  a  testator,  we  may  enumerate  the 
following  propositions: 

IN  A  LEGAL  SENSE  THE  FORMAL  DECLARATION  OF  THE 
TESTATOR'S  INTENT  IS  NOT  REGARDED  AS  HIS  WILL  UN- 
LESS THE  TESTATOR,  OR  TESTATRIX,  WAS/  OF  SOUND  MIND 
AND  NOT  UNDER  A  LEGAL  DISABILITY. 

It  is  not  necessary  that  the  testator  should  be  capable  of 
entering  into  a  valid  contract.  The  testator  must  have  suffi- 
cient mental  capacity  to  understand  the  nature  of  his  act,  the 
extent  of  his  property,  his  relation  to  others  who  might  or 
ought  to  be  subjects  of  his  bounty,  and  must  understand  the 
scope  and  provisions  of  his  will  and  have  a  sufficient  memory  to 
collect  in  his  mind,  without  prompting,  the  elements  of  the 
business  to  be  transacted,  and  to  hold  them  in  his  mind  a  suf- 
ficient length  of  time  to  preceive  at  least  their  obvious  relation 
to  each  other.2  In  other  words,  a  testator  must  be  capable  of 
exercising  his  judgment,  his  reasoning  faculties  and  a  continu- 
ity of  thought. 

The  fact  that  a  testator  had  a  capacity  to  contract  is  not  al- 
ways conclusive  that  he  had  a  capacity  to  make  a  will.  There 

"McGinnis  vs.  Kempsey,  27  Mich.,  367; 

Kerr  vs.  Lunsford,  31  W.  Va.,  659;    2  L.  R.  A.,  668. 


502  TITLE   BY    DEVISE. 

are  a  number  of  instances  in  which  one  having  the  capacity  to 
contract  has  yet  by  reason  of  some  insane  aversion  or  suspicion 
as  to  the  natural  objects  of  his  bounty,  been  held  to  be  of  un- 
sound mind  in  that  one  particular. 

INFANTS. 

It  is  necessary  that  the  law  should  fix  some  age  at  which  it 
is  conclusively  presumed  that  a  testator  is  capable  of  exercis- 
ing an  independent  wish  or  intention  as  to  the  disposition  of 
his  property.  The  statutes  of  the  different  States  vary  in  this 
respect.  In  most  of  the  States  the  age  of  twenty- one  years  is 
required,  as  to  wills  of  both  real  and  personal  property.3  In 
some  States,  while  twenty-one  years  is  required  as  to  devises  of 
realty,  a  valid  will  of  personalty  may  be  made  at  eighteen.4 
In  other  States,  a  will  of  both  real  and  personal  property  may 
be  made  at  eighteen;5  while  in  others,  the  age  is  twenty-one 
years  for  males  and  eighteen  for  females.6 

MARRIED  WOMEN. 

At  common  law,  a  married  woman  was  incapable  of  making 
a  valid  will  of  real  property ;  she  might,  however,  make  a  valid 
will  of  her  personalty  with  her  husband's  consent.  In  most  of 
the  States  these  common  law  disabilities  are  now  removed  by 
statute,  and  a  married  woman  can  make  a  valid  will  the  same 
as  a  feme  sole.  For  the  same  reason  that  the  law  requires 

This  is  the  rule  in  Arizona,  Delaware,  Florida,  Indiana,  Iowa, 
Kansas,  Kentucky,  Maine,  Massachusetts,  Michigan,  Minnesota, 
Mississippi,  Nebraska,  New  Hampshire,  New  Jersey,  New  Mexico, 
Ohio,  Pennsylvania,  South  Carolina,  Texas,  West  Virginia,  Wyom- 
ing. 

*This  is  the  rule  in  Alabama,  Arkansas,  Missouri,  Oregon,  Rhode 
Island  and  Virginia. 

This  is  the  rule  in  California,  Connecticut,  Idaho,  Montana,  Ne- 
vada, North  Dakota,  South  Dakota  and  Utah. 

This  is  the  rule  in  Colorado,  Illinois,  Maryland,  Missouri  and 
Washington. 


TITLE   BY    DEVISE.  503 

certain  essential  requisites  as  to  the  person,  namely,  that  the 
formal  declaration  shall  express  the  real  wish  or  determina- 
tion of  a  competent  testator,  it  requires  that  certain  formali- 
ties shall  attend  the  execution  of  such  wish  or  determination. 

3.  AS  A  GENEBAL  BULE,  EVEBY  WILL,  TO  PASS  AN  ES- 
TATE, BEAL  OB  PEBSONAL,  MUST  BE  IN  WBITING  AND 
SIGNED  OB  SEALED  BY  THE  TESTATOB,  OB  BY  SOME  ONE 
IN  HIS  PBESENCE,  AND  AT  HIS  EXPBESS  DIBECTION,  AND 
MUST  BE  ATTESTED  AND  SUBSCBIBED,  IN  HIS  PBESENCE, 
BY  TWO  OB  MOBE  WITNESSES.7 

The  requirements  as  to  the  formalities  of  a  will  are  statu- 
tory, and,  while  the  statutes  vary  somewhat,  the  above  essen- 
tials are  required  by  the  statutes  of  nearly  all  the  States. 

A  nun-cupative  will  is  an  oral  will  declared  by  a  testator 
before  witnesses,  and  afterwards  reduced  to  writing.  Under 
the  early  English  law,  one  in  extremis  might  make  a  valid  nun- 
cupative will  of  personal  property.  This  power  was  so  abused 
that  the  statute  of  frauds  provided  that  nun-cupative  wills 
could  only  be  made  of  property  of  less  value  than  thirty  pounds, 
and  by  sailors  and  soldiers. 

Under  the  statutes  in  most  States,  a  nun-cupative  will  can 
only  be  made  by  soldiers  in  active  service  or  mariners  on  ship- 
board. In  some  States  a  nun-cupative  will  of  personal  property, 
not  exceeding  a  limited  value,  is  valid  if  properly  declared. 

As  a  rule,  the  statutes  do  not  prescribe  the  material  on 
which  a  will  shall  be  written,  or  that  the  writing  shall  be  done 
in  pen  and  ink.  In  the  absence  of  a  statute  to  the  contrary, 
any  substance  capable  of  receiving  and  retaining  a  legible  and 
reasonably  permanent  impression,  and  not  too  susceptible  to- 
erasure  or  change,  would  be  regarded  as  a  proper  material  on 

7As  a  general  rule,  the  subscribing  witness  must  actually  see  the 
testator  and  each  other  sign,  and  they  must  sign  in  his  presence,  and  at 
his  request.  And  he  must  declare  to  them  that  the  instrument  is  his 
will  but  they  need  not  be  made  acquainted  with  its  contents. 


504  TITLE   BY    DEVISE. 

which  to  write  a  will.7  The  will  need  not  be  in  any  particular 
form  or  language.  Any  writing  properly  executed,  manifesting 
the  intention  of  the  testator  as  to  the  disposition  of  his  prop- 
erty after  his  death  is  sufficient.  Thus,  a  paper  reading  "I  wish 
my  sister,  Louisa  Cook,  of  104  York  Road,  Lambeth,  to  have 
my  Charing  Cross  bank-book  for  her  own  use"  was  admitted  to 
probate.8 

IF  THE  INSTRUMENT  PASSES  A  PRESENT  INTEREST  IN 
THE  PROPERTY,  IT  IS  A  DEED  OR  A  CONTRACT;  BUT,  IF  THE 
INSTRUMENT  DOES  NOT  PASS  AN  INTEREST  OR  RIGHT  UN- 
TIL THE  DEATH  OF  THE  MAKER,  IT  IS  A  WILL. 

Whether  or  not  the  instrument  takes  effect  immediately,  or 
at  the  death  of  the  maker,  depends  upon  the  intent  of  the 
maker.9  This  intent  is  to  be  gathered  from  the  language  of  the 
instrument,  and  is  not  necessarily  controlled  by  the  form  of 
the  writing.  Thus,  an  instrument  in  the  form  of  an  assignment 
and  reading  as  follows :  "Know  all  men  by  these  presents,  that 
I,  Joseph  Eobinson,  for  the  consideration  of  one  dollar,  to  me  in 
hand  paid,  as  well  as  my  affection,  do  hereby  set  over  to  my 
daughter,  Eliza  Jane  Brewster,  all  my  estate,  both  real  and 
personal,  to  have  the  same  after  my  death,"  was  admitted  to 
probate  as  a  will. 

The  testator  may  sign  by  making  his  own  signature;  or  by 
his  mark,  or  by  using  a  stamp,  or  by  holding  a  pen,  guided  by 
another,  with  the  intention  to  adopt  such  mark,  stamp  or  sig- 
nature, as  his  own.  We  may  not  go  into  detail  as  to  the  re- 
quirements of  the  various  statutes  as  to  the  attestation  and 

7A  will  written  on  a  slate  has  been  refused  probate  on  the  ground 
that  the  writing  was  too  susceptible  to  erasure,  and  the  fraudulent  sub- 
stitution of  other  provisions. 

Myers  vs.  Vanderbelt,  84  Pa.  St.,  510.  Compare  Ellis  vs.  Secor,  31 
Mich.,  185. 

&Cook  vs.  Cook,  L.  R.  I.  F.  &  D.,  241. 
Knox's  Appeal,  131  Pa.,  220;  6  L.  R.  A.,  353. 
•Re  Cawley's  Appeal,  130  Pa.,  628;  10  L.  R.  A.,  93. 
Crocker  vs.  Smith,  94  Ala.,  295;  16  L.  R.  A.,  576. 


TITLE    BY    DEVISE.  505 

execution  of  the  will.    As  to  these,  the  student  must  consult 
the  statute  of  his  own  State. 

It  sometimes  happens  that  notwithstanding  the  testator  was 
of  the  required  age  and  sound  mind,  and  notwithstanding  that 
the  will  was  in  writing,  signed  by  the  testator  and  properly 
witnessed,  yet  the  written  declaration  is  not  the  will  or  determ- 
ination of  the  testator;  for  the  reason  that  there  has  been  sub- 
stituted for  such  determination  a  declaration  of  intention  con- 
trary to  the  real  wish  or  determination  of  the  testator.  Such 
declaration  is  not  the  real  will  of  the  testator,  however  much  it 
may  purport  to  be,  and  no  matter  how  sound  the  mind  of  the 
testator  may  have  been,  or  how  clearly  the  statutory  formalities 
may  have  been  followed.  As  has  been  stated,  what  the  law 
seeks  to  enforce  is  the  real  and  duly  authenticated  wish  of  the 
testator  himself.  Therefore,  if  it  can  be  shown  that  the  instru- 
ment propounded  embodies  not  his  wish,  but  that  of  somebody 
else,  it  cannot  be  enforced. 

IF  THE  SIGNATURE  OF  THE  TESTATOR  BE  OBTAINED  BY 
FRAUD,  OR  IF  HE  WAS  UNDULY  INFLUENCED  IN  MAKING 
A  WILL  WHICH  DOES  NOT  REPRESENT  HIS  OWN  PERSONAL 
WISHES,  SUCH  WILL  IS  INVALID. 

An  instance  of  obtaining  a  signature  by  fraud  is  where 
one,  after  reading  a  will  to  a  testator,  surreptitiously  sub- 
stituted another  for  him  to  sign.  It  is  not  every  influence 
over  a  testator  that  is  undue.  Any  influence  which  does  not  go 
beyond  a  reasonable  argument  or  appeal  to  the  affections,  or 
suggestion  or  advice  to  the  testator,  regarding  the  claims  of 
different  persons  upon  him,  is  proper.10 

The  true  test  of  undue  influence  is  that  it  overpowers  the 
will,  without  convincing  the  mind.  It  must  be  an  influence 

"Advice,  persuasion  or  argument  cannot  vitiate  a  will  made  freely 
from  conviction,  though  such  will  might  not  have  been  made  but  for 
such  advice  or  persuasion. 


506  TITLE   BY    DEVISE. 

which  overcame  the  testator's  free  agency  and  prevented  him 
from  doing  as  he  pleased.11  An  influence  obtained  by  flattery r 
importunity,  superiority  of  will,  mind  or  character,  or  by  what- 
soever art  that  human  thought,  ingenuity  or  cunning  may  em- 
ploy, which  would  give  dominion  over  the  will  of  the  testator 
to  such  an  extent  as  to  destroy  free  agency,  or  constrain  him  to- 
do,  against  his  will,  what  he  is  unable  to  refuse,  is  such  an  in- 
fluence as  the  law  condemns  as  undue.12 

From  the  foregoing  discussion  we  may  summarize  the  law 
relating  to  the  essentials  of  a  valid  will  as  follows: 

THE  TESTATOR  MUST  BE  OF  SOUND  MIND  AND  OF  REQUI- 
SITE AGE;  HE  MUST  HAVE  A  WISH  OR  INTENTION  AS  TO< 
THE  DISPOSITION  OF  HIS  PROPERTY  AFTER  HIS  DEATH, 
AND  SUCH  WISH  MUST  BE  EMBODIED  IN  WRITING  AND 
SIGNED  BY  THE  TESTATOR  AND  PROPERLY  ATTESTED, 
FREE  FROM  FRAUD  OR  UNDUE  INFLUENCE." 

If  these  essentials  exist,  the  law  says  that  the  instrument 
is  the  testator's  will.  For  the  purpose  of  ascertaining  whether 
all  these  elements  exist,  the  law  requires  that  a  legal  proceed- 
ing, known  as  the  probate  of  the  will,  shall  be  had  in  a  court 
having  jurisdiction.  The  statutes  requiring  the  probate  of  the 
will  usually  provide  that  no  will  shall  be  effectual  to  pass  real 
or  personal  estatCj  unless  it  shall  be  duly  proved  in  a  probate 
or  surrogate  court. 

The  probate  of  a  will  under  such  a  statute  ascertains  noth- 
ing but  the  validity  of  the  will  as  such,  and  is  not  the  founda- 
tion of  the  title  in  itself.  "The  act  of  the  testator  gave  it  life; 
his  death  consummated  the  title  derivatively  from  himself;  and 

"Mayriard  vs.  Vinton,  59  Mich.,  139. 
12Schofield  vs.  Walker,  58  Mich.,  96. 
Elkinton  vs.  Brick,  44  N.  J.  Eq.,  154;  1  L.  R.  A.,  161. 
"If  all  these  essentials  exist  the  courts  will  uphold  the  will  how- 
ever contrary  it  may  be  to  the  ideas  of  other  people  of  justice  or  hu- 
manity. 

Middleditch  vs.  Williams,  45  N.  J.  Eq.,  726;  4  L.  R.  A.,  738. 


TITLE   BY    DEVISE.  507 

the  probate  only  ascertains  that  the  instrument  in  fact  is  what 
it  purports  on  its  face  to  be."14 

Once  the  will  is  probated,  it  relates  back  to  the  time  of  de- 
ceased's death.  A  will,  since  it  does  not  create  a  present  in- 
terest in  any  one,  may  be  revoked  by  the  testator  at  any  time 
before  death.  The  law,  in  an  effort  to  protect  the  wish  of  the 
testator,  has  thrown  safeguards  around  the  revocation  of  wills. 

AS  A  GENERAL  RULE,  THE  STATUTES  PROVIDE  THAT  NO 
WILL  SHALL  BE  REVOKED,  UNLESS  BY  BURNING,  TEARING, 
CANCELLING  OR  OBLITERATING  THE  SAME,  WITH  THE  IN- 
TENTION OF  REVOKING  IT,  BY  THE  TESTATOR  OR  BY  SOME 
ONE  IN  HIS  PRESENCE  AND  BY  HIS  DIRECTION;  OR  BY 
SOME  OTHER  CODICIL  OR  WILL  IN  WRITING,  SIGNED  AND 
ATTESTED  BY  TESTATOR  IN  THE  MANNER  PROVIDED  FOR 
THE  EXECUTION  OF  WILLS.  A  WILL  MAY  ALSO  BE  RE- 
VOKED BY  CHANGE  IN  THE  CONDITION  OR  CIRCUMSTANCES 
OF  THE  TESTATOR,  OF  SUCH  A  CHARACTER  THAT  THE  LAW 
WILL  IMPLY  A  REVOCATION. 

1.  At  the  common  law,  the  will  of  a  woman  was  revoked 
by  her  subsequent  marriage.    In  some  States  this  rule  has  been 
abrogated  by  statute.    In  some  States  it  has  been  held  that 
the  married  woman's    acts  impliedly  abrogate  this  rule.15 

2.  The  marriage  of  a  man  would  not  at  common  law  re- 
voke his  will ;  but  if  issue  were  born  of  the  marriage,  for  which 
no  provision  was  made  in  the  will,  an  implied  revocation  would 
take  place. 

The  birth  of  a  posthumous  child  has  the  same  effect  in  re- 
voking a  will,  as  the  birth  of  a  child  during  testator's  life  time, 
unless  otherwise  provided  by  statute. 


14Ex  parte  Fuller,  2  Story,  U.  S.,  327. 

"Xoyes  vs.   Southworth,  55  Mich.,  173. 

Roane  vs.  Hollingshead.  76  Md.,  369;  17  L.  R.  A.,  592. 
Catholic  Benefit  Ass'n  vs.  Firnane,  50  Mich.,  82. 


508  TITLE   BY    DEVISE. 

3.  Any  change  in  a  man's  circumstances  which  necessarily 
raised  an  inference  of  revocation  would  at  common  law  amount 
to  a  revocation.  Thus,  if  the  testator  after  expressly  devising 
certain  property,  conveyed  it  to  another,  his  act  would  amount 
to  a  revocation.  At  the  common  law  this  revocation  was  not 
affected  by  a  subsequent  re-conveyance  to  the  testator.  So,  at 
the  common  law,  if  the  devisee  or  legatee  died  before  the  tes- 
tator, as  a  general  rule  the  legacy  or  devise  would  lapse  and 
pass  to  the  testator's  residuary  estate.  This  common  law  rule 
has  been  abrogated  by  statute  in  many  States,  and  under  many 
statutes,  if  the  devisee  or  legatee  has  issue  which  survive  the 
testator's  death,  the  devise  or  legacy  does  not  lapse,  but  passes 
to  such  issue.  In  some  States  the  statute  applies  only  when  the 
legatee  or  devisee  is  a  child  of  the  testator;16  while,  in  other 
States,  the  statute  applies  if  the  legatee  or  devisee  is  a  child  or 
other  blood  relative  of  the  testator.17 

There  is  only  one  other  matter  which  requires  any  discus- 
sion and  that  relates  to  the  construction  of  wills. 

THE  GREAT  AIM  IN  CONSTRUCTING  WILLS  IS  TO  ASCER- 
TAIN THE  INTENTION  OF  THE  TESTATOR.18 

The  question  always  is,  what  meaning  did  the  testator  in 
fact  express  in  the  provision  under  consideration?  In  ascer- 
taining this  meaning,  courts  take  more  liberty  in  construing 
wills,  than  writings  that  have  followed  formal  and  precise 
language,  such  as  deeds  and  contracts.  The  mere  gram- 
matical or  ordinary  sense  of  words  will  not  be  adhered  to,  if  it 
would  be  repugnant  to  or  inconsistent  with  the  intention  of  the 

"This  is  the  rule  in  Alabama,  Arkansas,  Colorado,  Illinois,  Indiana, 
Mississippi,  New  York,  New  Jersey,  North  Carolina,  Pennsylvania  and 
Texas. 

"This  is  the  rule  in  California,  Kansas,  Michigan,  Maine,  Massa- 
chusetts, Minnesota,  Missouri,  Nebraska,  Nevada,  Oregon,  Ohio,  Ver- 
mont and  Wisconsin. 

"Whitcomb  vs.  Rodman,  156  111.,  116;  28  L.  R.  A.,  149. 


TITLE   BY    DEVISE.  509 

testator  as  gathered  from  the  entire  instrument.10  The  mean- 
ing of  words  used  in  a  will  is  usually  determined  by  the  law  of 
the  testator's  domicile. 

IN  REGARD  TO  REAL  PROPERTY,  THE  MODE  OF  EXECU- 
TION, CAPACITY  OF  THE  TESTATOR  AND  VALIDITY  OF  A 
WILL,  MUST  BE  GOVERNED  BY  THE  LAW  WHERE  THE  LAND 
IS  SITUATED. 

THE  VALIDITY  OF  A  WILL  OF  PERSONAL  PROPERTY  DE- 
PENDS UPON  THE  LAW  OF  THE  PLACE  OF  TESTATOR'S 
DOMICILE  AT  THE  TIME  OF  HIS  DEATH. 

In  a  number  of  States,  statutes  have  been  passed  providing 

• 
that -a  will  of  real  property,  valid  according  to  the  law  of  the 

place  of  testator's  domicile,  shall  be  given  effect  in  the  place 
where  the  property  is  situated. 


"Boston  Safe  Deposit  &  T.  Co.  vs.  Oothn,  152  Mass.,  95;  8  L.  R.  A.r 
740. 


CHAPTER  V. 

LAND  CONTKACTS. 

A  CONTRACT  FOB  THE  PURCHASE  OF  REAL  ESTATE  IS 
NOT  VALID  UNLESS  IT  IS  IN  WRITING.  THE  PAYMENT  OF 
MONEY  DOWN  WILL  NOT  BIND  THE  BABGAIN. 

Having  discussed  the  essential  principles  of  the  law  of  con- 
veyancing, we  deem  it  proper  to  sum  up  some  of  the  rules 
which  are  important  in  the  active  busines  practice  of  the  law 
at  this  time. 

A  verbal  contract  for  the  purchase  and  sale  of  real  estate 
is  not  binding  on  either  party.1  The  payment  of  money  down 
does  not  help  the  matter,  if  the  agreement  is  verbal;  nor  does 
it  make  the  contract  any  stronger  if  it  is  in  writing.  A  verbal 
contract  for  the  sale  of  personal  property  may  be  made  binding 
by  the  payment  of  money  on  account,  but  a  verbal  contract  for 
the  sale  of  real  estate  cannot.  And  where  money  has  been 
paid  on  a  verbal  contract  for  real  estate,  the  person  who  paid 
it  has  a  right  to  get  it  back  by  asking  for  it.  It  cannot  be  for- 
feited, either  in  whole  or  in  part,  although  it  was  expressly 
-agreed  that  it  should  be  forfeited  if  the  purchaser  should  not 
complete  his  purchase.  The  verbal  contract  being  void, 
creates  no  obligation  whatever,  nor  does  anything  done  by 
either  party  in  reliance  upon  it  create  any  obligation.  For 
instance,  if  the  seller  were  to  go  to  the  expense  of  procuring 
an  abstract  of  title  to  the  property  in  conformity  with  the 
verbal  agreement,  he  cannot  recover  the  cost  from  the  pur- 

JLowe  vs.  Turpie,  147  Ind.,  652;  37  L.  R.  A.,  233. 

510 


LAND   CONTRACTS.  511 

chaser  if  the  latter  backs  out,  nor  retain  it  out  of  any  money 
which  may  have  been  paid  on  account.  Nor  can  the  purchaser 
recover  any  damages  for  any  expense  he  may  have  gone  to  in 
having  the  title  examined,  or  any  other  expense  he  may  have 
incurred  in  reliance  upon  the  bargain.  No  obligation  of  any 
nature  whatever  can  grow'out  of  the  void  contract. 

THE  WRITTEN  CONTRACT  DOES  NOT  BIND  A  PARTY  TO 
IT,  UNLESS  HE  OR  HIS  LAWFUL  AGENT  HAS  SIGNED  IT. 

At  the  common  law,  and  in  some  States,  a  written  con- 
tract for  the  sale  of  real  estate  can  be  enforced  against 
a  party  who  has  signed  it,  whether  the  other  party  has 
signed  it  or  not.  If  both  parties  have  signed  the  contract, 
both  are  bound.  But  if  only  one  has  signed,  whether  seller 
or  purchaser,  he  is  bound  and  the  other  is  not.  This  is  the 
general  rule  throughout  the  United  States,  but,  in  some  of 
the  States,  the  law  now  requires  the  contract  to  be  signed  by 
the  seller.2  This  is  a  matter  regulated  by  statute,  and  the 
statutes  frequently  change.  In  order,  therefore,  to  be  upon 
the  safe  side,  a  contract  ought  always  to  be  signed  by  both 
parties.  Many  of  the  States  now  require  the  consideration  to 
be  expressed  in  the  writing,  and  when  the  contract  is  signed  by 
an  agent  the  agent's  authority  to  sign  should  be  in  writ- 
ing. These  things  should  always  be  insisted  upon,  unless  the 
party  is  sure  that  the  statutes  both  of  the  State  where  the  con- 
tract is  made,  and  of  the  State  where  the  property  is  situated, 
dispense  with  any  one  of  these  requisites. 

AUCTION  SALES  OF  LAND,  WHETHER  BY  A  PRIVATE 
PERSON,  AN  ADMINISTRATOR,  A  SHERIFF  SELLING  UNDER 
AN  EXECUTION,  OR  UNDER  THE  POWER  OF  SALE  IN  A 
MORTGAGE,  MUST  BE  REDUCED  TO  WRITING  AND  SIGNED 
LIKE  OTHER  CONTRACTS. 

2In  some  States  a  contract  to  sell  real  estate,  if  not  signed,  by  both 
parties,  is  void  for  want  of  mutuality. 

Wardell  vs.  Williams,  62  Mich.,  50. 


512  LAND   CONTRACTS. 

The  only  contracts  for  the  sale  of  real  estate  which  are 
exempt  from  the  requirement  that  they  must  be  in  writing 
and  signed  by  the  parties  in  order  to  give  them  validity,  are 
what  are  knowTn  in  the  law  as  judicial  sales.  Such  are  sales 
which  are  made  by  the  express  authority  of  a  judgment  or  de- 
cree of  a  court,  directing  the  sale  of  the  particular  piece  of 
property  sold,  in  which  the  officer  making  the  sale  is  acting  as 
an  officer  of  the  court,  and  not  as  an  agqfet  of  the  party,  and  in 
which  the  sale  must  be  confirmed  by  the  court,  and  a  deed  in 
pursuance  of  the  sale  is  directed  to  be  made  by  the  court.  A 
purchaser  at  such  a  sale  may  be  compelled  by  the  court  to  take 
the  property  and  pay  the  stipulated  price  without  having 
signed  a  contract.  Sales  under  a  decree  in  Chancery  for  par- 
tition or  the  foreclosure  of  a  mortgage,  are  familiar  examples 
of  judicial  sales.  But  sales  by  a  sheriff,  under  an  execution, 
and  sales  by  an  administrator,  are  not  regarded  as  judicial 
sales.  In  such  cases,  and  in  sales  by  advertisement,  under  the 
power  of  sale  in  a  mortgage,  and  at  all  ordinary  auction  sales, 
all  that  has  been  said  already  as  to  what  is  necessary  to  make 
the  sale  valid,  applies.  There  must  be  a  written  memorandum, 
and  the  deposit  of  money  will  not  bind  the  sale.  Therefore,  in 
sales  of  real  estate  by  auction,  either  party  who  is  desirous 
that  any  sale  which  may  be  made  shall  be  binding,  should  take 
the  precaution  to  have  a  memorandum  of  sale  prepared,  ready 
to  be  filled  out,  and  signed  as  soon  as  the  property  is  knocked 
down. 

THERE  IS  NO  PRESCRIBED  FORM  OF  CONTRACT.  IT  MAY 
EVEN  CONSIST  IN  LETTERS  AND  TELEGRAMS. 

No  special  form  of  words  is  required  to  make  a  valid  con- 
tract. The  statutes  simply  require  that  the  contract,  "or  a 
memorandum  thereof,''  should  be  in  writing  and  signed.  In 
order,  however,  to  make  a  contract  which  will  be  valid  every- 


LAND   CONTRACTS.  513 

where,  the  writing  should  contain  the  names  of  the  parties, 
such  a  description  of  the  property  as  will  clearly  identify  it, 
the  price,  and  terms  of  sale.  Valid  contracts  for  the  sale  of 
real  estate  are  sometimes  made  by  offers  and  acceptances,  by 
means  of  letters  and  telegrams.  A  contract  in  writing  is  not 
necessarily  contained  in  a  single  piece  of  paper.  Any  number 
may  be  read  together,  and  if  from  the  whole  a  complete  con- 
tract can  be  made  o^t,  it  is  a  good  contract.  Where  one  writ- 
ing refers  to  another,  the  one  referred  to  may  always  be  read 
and  considered  as  though  it  were  embodied  in  the  first,  where 
it  is  necessary  to  make  its  meaning  clear.  But  in  making  a 
contract  by  letter  or  telegram,  care  must  be  taken  that  the 
acceptance  of  an  offer  which  is  relied  upon  to  make  a  com- 
plete contract,  is  unqualified.  Any  modification  or  qualifica- 
tion in  the  intended  acceptance,  however  slight,  of  the  terms 
proposed,  will  destroy  its  effect,  and  it  will  not  be  considered 
an  acceptance,  but  in  effect  as  a  proposal  for  a  different  con- 
tract. 

IF  THE  SELLER  OF  REAL  ESTATE  REFUSES  TO  CARRY 
OUT  HIS  CONTRACT,  LEGALLY  MADE,  THE  BUYER  MAY 
EITHER  SUE  FOR  DAMAGES,  OR  TAKE  PROCEEDINGS  TO  COM- 
PEL HIM  TO  CARRY  OUT  HIS  CONTRACT. 

Ordinarily,  the  only  remedy  which  the  law  affords  to  a  per- 
son who  is  injured  by  the  breach  of  a  contract,  is  a  suit  for 
damages.  In  case  of  a  suit  for  damages  either  by  buyer  or 
seller,  the  amount  which  could  be  recovered,  would  ordinarily 
bo  the  difference  between  the  actual  value  of  the  land  and  the 
price  which  was  agreed  to  be  paid.  But  the  law  affords  to  the 
purchaser  of  real  estate  another  remedy.  He  may,  if  he 
chooses,  take  proceedings  to  compel  what  is  called  "specific 
performance"  of  the  contract.  That  is,  he  may  apply  to  a  court 
in  a  proper  proceeding  to  require  the  seller  to  deed  the  land 


514  LAND   CONTRACTS. 

in  accordance  with,  the  terms  of  the  contract.  If  after  a  de- 
cree to  that  effect,  the  seller  should  still  refuse  to  execute  the 
deed,  the  court  can  make  its  own  decree  stand,  and  have  all  the 
effect  of  a  deed,  and  be  recorded  as  such. 

THERE  ABE  SOME  CASES  IN  WHICH  THE  COURTS  WILL 
COMPEL  THE  OWNER  OF  REAL  ESTATE  TO  CARRY  OUT  A 
CONTRACT,  ALTHOUGH  IT  IS  NOT  IN  WRITING  AND  SIGNED 

AS  REQUIRED  BY  LAW. 

i 

Where  a  mere  verbal  contract  for  the  sale  of  real  estate  has 
been  partly  carried  into  effect  by  the  parties,  the  courts  will 
sometimes  decree  a  specific  performance  of  it  at  the  suit  of  the 
purchaser.  In  sueh  a  case,  it  is  said  that  the  application  is 
addressed  to  the  "discretion"  of  the  court,  and  no  absolute 
rules  can  be  laid  down  as  to  when  it  will  be  granted,  and  when 
it  will  be  refused.  In  a  general  way,  it  may  be  said  that  where 
the  seller  has  put  the  purchaser  into  possession  of  the  land 
which  is  the  subject  matter  of  the  contract,  and  the  purchaser 
has  paid  the  whole  or  a  part  of  the  stipulated  price,  and  has 
made  improvements,  or  otherwise  materially  changed  his  situ- 
ation on  the  faith  of  the  contract,  the  law  will  compel  specific 
performance  of  the  contract.  Less  than  this  will  not  suffice. 
The  mere  payment  of  the  agreed  price  is  never  considered, 
standing  alone,  as  a  sufficient  ground  for  decreeing  specific 
performance  of  a  verbal  contract  for  the  sale  of  land. 

A  PURCHASER  OF  REAL  ESTATE  SHOULD  EXAMINE  THE 
TITLE  BEFOBE  MAKING  A  CONTRACT,  OR  SEE  THAT  THE 
CONTRACT  CONTAINS  PROPER  STIPULATIONS  AS  TO  THE 
TITLE. 

In  a  contract  for  the  sale  of  real  estate  by  a  person  selling 
in  his  own  right  where  nothing  is  said  as  to  the  title,  the  law 
implies  a  condition  that  the  seller  shall  give  a  "marketable" 
title.  In  official  sales,  as  by  a  sheriff,  administrator,  trustee, 


LAND   CONTRACTS.  515 

or  other  person  selling  in  an  official  capacity,  there  is  no  im- 
plied warranty  as  to  the  title.  In  no  case,  however,  unless  it 
is  expressly  stipulated  otherwise,  is  the  seller  obliged  to  fur- 
nish an  abstract  of  title,  or  to  furnish  other  evidence  that  he 
has  a  good  title.  Nor  is  the  purchaser  entitled  to  delay  for  the 
purpose  of  examining  it.  He  is  presumed  to  have  satisfied 
himself  as  to  the  title  before  entering  into  the  contract,  and  if 
he  wishes  to  withdraw  from  the  treaty  upon  the  ground  that 
the  seller's  title  is  not  good,  he  takes  upon  himself  the  burden 
of  proving  it.  Generally  a  seller  is  obliged  to  give  a  warranty 
deed,  unless  it  is  otherwise  stipulated.  But  upon  this  point 
the  decisions  are  not  uniform.  Therefore,  it  is  customary  for 
careful  real  estate  buyers  to  see  that  the  contract  provides  that 
the  seller  shall  furnish  an  abstract  of  title,  shall  give  a  war- 
ranty deed,  that  the  title  shall  be  clear  and  unencumbered, 
that  a  reasonable  time  shall  be  allowed  for  investigation,  and 
in  some  cases  that  it  shall  be  approved  by  a  person  who  is 
named.  It  is  frequently  difficult  to  determine  the  validity  of  a 
given  title,  and  courts  and  lawyers  are  not  always  agreed  with 
regard  to  it. 

BEFORE  SIGNING  THE  CONTRACT  THE  PURCHASER 
SHOULD  SEE  THE  LAND  AND  INQUIRE  OF  ANY  PERSON  IN 
POSSESSION  AS  TO  THE  NATURE  OF  HIS  INTEREST. 

There  are  many  facts  which  it  is  important,  that  a  pur- 
chaser of  real  estate  should  know,  as  to  which  an  abstract  of 
title,  and  the  advice  of  counsel  based  upon  it,  will  afford  him 
no  information.  It  was  a  doctrine  of  the  ancient  common  law, 
from  which  our  system  of  law  is  derived,  that  whatever  is  affixed 
to  the  soil  or  grows  upon  it,  becomes,  or  is  a  part  of  the  land 
itself.  Therefore,  ordinarily  a  contract  for  the  sale  of  real 
estate  is  a  contract  also  for  the  sale  of  the  buildings  upon 
it,  and  the  things  which  are  growing  upon  it  at  the  time.  But 


516  LAND   CONTRACTS. 

the  old  doctrine  has  gradually  given  way  to  the  requirements 
of  modern  life,  and  now  there  are  many  things  which  may,  or 
may  not,  be  part  of  the  land,  according  to  circumstances.  Or- 
dinarily, whatever  is  affixed  or  planted  by  the  owner  is  a  part 
of  the  land,  whether  buildings,  machinery,  or  fixtures  of  any 
kind,  or  crops  put  in  by  him,  and  a  contract  by  the  owner  to 
sell  the  land  would  include  everything  as  a  part  of  the  land. 
But  even  fixtures  put  in  by  an  owner,  may  be  owned  by,  or 
subject  to  a  lien,  in  favor  of  some  other  person.  If  the  land 
is  in  possession  of  a  tenant,  the  buildings,  machinery,  fixtures 
and  crops  may  be  the  tenant's  personal  property.  A  tenant 
may  also  have  a  lease  which  has  a  considerable  time  to  run. 
His  possession  is  notice  of  his  rights.  Therefore,  it  is  al- 
ways advisable  to  inspect  the  property,  and  learn  by  in- 
quiry exactly  what  belongs  to  it.  Actual  and  visible  posses- 
sion of  real  estate  is  regarded  as  notice  to  the  world  that  the 
person  in  possession  has  rights  in  the  premises,  and  it  is  the 
duty  of  a  person  dealing  with  the  title  to  inquire  of  the  person 
in  possession  what  his  rights  are.1 

'  THE  LAW  WILL  NOT  PROTECT  ONE  WHO  BUYS  REAL  ES- 
TATE IN  VIOLATION  OF  WHAT  HE  KNOWS,  OR  HAS  NOTICE, 
ARE  THE  JUST  RIGHTS  OF  A  THIRD  PERSON. 

The  record  title  of  real  estate  may  be  perfectly  clear,  and 
the  responses  to  inquiries  put  to  a  person  in  possession  may 
be  satisfactory,  and  yet  a  would-be  purchaser  may  know,  or 
have  reason  to  believe,  that  a  third  person  has  equitable  rights 
in  the  property  which  is  offered  for  sale.  For  instance,  a 
third  person  may  have  an  unrecorded  contract  for  the  purchase 
of  the  land,  or  there  may  be  an  unrecorded  mortgage,  or  there 
may  be  other  equitable  rights,  of  which  there  is  uo  legal  notice, 
as  is  given  by  the  record  or  by  visible  possession.  Now, 

'Van  Baalen  vs.  Cotney,  113  Mich.,  202. 


LAND   CONTRACTS.  517 

if  a  person  knowing  of  any  such  equitable  right,  or  having 
any  notice  of  it,  buys  the  land,  he  takes  subject  to  the  right, 
and  it  can  be  enforced  against  the  land  in  his  hands.  The 
law  requires  of  everybody  care,  that  in  pursuing  his  own  ends, 
he  does  not  violate  the  rights  of  others. 

A  PURCHASER  WILL  NOT  USUALLY  LOSE  HIS  RIGHTS 
UNDER  A  LAND  CONTRACT  BECAUSE  HE  DOES  NOT  MAKE 
HIS  PAYMENTS  AT  THE  STIPULATED  TIME. 

An  application  to  a  court  to  compel  the  performance  of  a 
land  contract,  is,  as  has  been  stated,  addressed  to  the  "discre- 
tion"' of  the  court.  That  is,  the  court,  in  determining  the 
question,  will  not  necessarily  be  governed  by  harsh  or  unbend- 
ing rules,  but  will  consider  what,  under  the  circumstances  of 
the  particular  case,  seems  to  be  just  and  fair  between  the 
parties,  and  give  judgment  accordingly.  This  is  what  is 
meant  by  the  "discretion"  which  is  exercised  by  the  court  in 
administering  the  law  of  specific  performance.  If  a  person 
buys  real  estate  upon  contract,  all  that  the  seller  has  a  right 
to  expect  is  so  much  money  at  a  certain  time  in  accordance 
with  the  terms  of  the  contract.  If  a  purchaser  makes  pay- 
ments on  the  price,  goes  into  possession  and  makes  valuable 
improvements  on  the  land,  it  would  then  be  a  manifest  injus- 
tice if  the  seller  could  turn  him  out  and  keep  the  money 
which  has  been  paid,  and  also  the  land  greatly  enhanced  in 
value,  on  account  of  a  delay  or  default  in  making  further  pay- 
ments. This  would  be  a  sort  of  legal  confiscation,  or,  as  it  is 
called  in  the  law,  a  forfeiture  which  Equity  is  said  to  abhor. 
On  the  other  hand,  it  is  plain  that  the  seller  is  not  to  be  kept' 
indefinitely  both  out  of  his  land  and  out  of  his  money.  In 
such  case,  if  the  purchaser  is  in  default,  the  seller  cannot 
therefore  declare  the  contract  forfeited,  and  refuse  to  give  a 
deed,  if  the  purchaser  shall,  at  any  time  before  the  contract  is 


518  LAND   CONTRACTS. 

finally  put  an  end  to,  tender  payment  of  all  that  is  due,  with 
interest.  And  if  the  seller  refuses  to  give  his  deed  under  such 
circumstances,  the  purchaser  may  apply  to  the  court  to  com- 
pel him.  The  seller  is  not  without  his  remedy  in  case  the 
purchaser  makes  default.  In  the  first  place,  if  the  purchaser 
has  been  put  into  possession,  the  seller  may  take  proceedings 
at  law  to  recover  the  possession.  And  he  may  apply  to  the 
court  to  compel  the  purchaser  to  pay  for  the  land  within  the 
terms  fixed  by  the  contract,  and  in  default  of  such  payment, 
that  the  contract  be  declared  at  an  end,  and  if  necessary  to 
do  justice,  that  the  land  be  sold.  Out  of  the  proceeds  he  will 
receive  his  money,  interest,  and  costs,  and  the  balance  will 
be  paid  over  to  the  purchaser.  In  this  way  justice  is  done  to 
both  parties.  Ordinarily,  the  equitable  rights  of  a  purchaser 
who  has  made  payments  and  improvements,  or  either,  cannot 
be  cut  off  without  some  proceeding  of  this  nature.  He  may 
be  turned  out  of  possession  for  his  default.  But  he  will  not 
lose  his  right  to  come  into  court,  it  may  be  years  afterwards, 
and  tender  what  he  owes,  with  interest  and  costs,  and  demand 
a  deed.  And  if  the  seller  has  been  in  possession  in  the  mean- 
time, he  may,  in  the  settlement,  be  required  to  account  upon 
equitable  principles  for  the  rents  and  profits  which  he  has 
received  from  the  land.  The  case  which  has  been  stated  is 
one  of  the  most  common  of  those  in  which  the  principle  is 
applied  that  "in  Equity  time  is  not  of  the  essence  of  the  con- 
tract." It  is  impossible  to  lay  down  rules  which  will  enable 
the  reader  to  decide  with  certainty  precisely  what  cases  fall 
within  the  rule,  since  every  case  must  depend  for  its  deter- 
mination on  its  own  circumstances.  Enough  has  been  stated 
to  show  the  general  principles  which  govern  a  court  of  Equity 
in  cases  of  this  nature.  It  may  be  said,  however,  that  the 
courts  will  never  lend  their  assistance  to  one  who  wilfully, 


LAND   CONTRACTS.  519 

or  for  wrong  purposes,  makes  default.  For  instance,  if  a  pur- 
chaser makes  default  intending  to  abandon  his  contract,  he 
could  not  afterwards,  when  the  land  had  greatly  risen  in  value, 
tender  performance  and  claim  a  deed.  Most  land  contracts 
which  are  formally  drawn,  contain  express  stipulations  that 
time  shall  be  considered  of  the  essence  of  the  contract,  and 
that  on  a  default  in  payment  at  the  stipulated  time,  the  con- 
tract may  be  declared  forfeited,  and  all  payments  previously 
made  shall  be  forfeited.  Such  stipulations  are  of  little  effect. 
They  will  not  be  enforced  by  the  courts  where  manifest  injus- 
tice would  be  the  result.  But  there  are  many  cases  in  which 
justice  requires  that  time  shall  be  considered  of  the  essence 
of  the  contract,  and  where  a  default  or  a  delay  will  be  consid- 
ered by  the  courts  a  sufficient  ground  for  the  seller  to  refuse 
to  be  bound.  For  instance,  if  a  contract  has  been  made  with 
regard  to  real  estate  of  a  speculative  character,  that  is,  real 
estate  which  is  likely  within  a  short  time  to  rise  or  fall 
considerably  in  value,  and  little  or  nothing  has  been  paid 
down,  the  would-be  purchaser  will  be  held  to  a  strict  com- 
pliance with  the  terms  of  his  contract,  or  he  will  lose  the 
benefit  of  it.  He  cannot,  under  such  circumstances,  whether 
wilfully  or  because  he  is  unable  ta  pay,  delay  and  thus  de- 
prive the  seller  of  the  advantage  which  the  state  of  the  market 
affords  him.1  Nor  is  the  seller  in  this  way  to  be  remitted  to  a 
law  suit  instead  of  getting  the  cash  which  was  the  induce- 
ment of  the  sale.  There  is  another  class  of  cases  in  which 
time  is  considered  of  the  essence  of  the  contract.  Where  it  is 
clear  from  the  language  used  by  the  parties  and  from  all  the 
circumstances  of  the  case,  that  no  equitable  or  legal  right  was 
intended  to  be  conveyed  until  a  large  payment  had  been  made, 
the  courts  will  construe  the  contract  in  that  wray.  This  occurs 
'Hawley  vs.  Jelly,  25  Mich..  94. 


520  LAND   CONTRACTS. 

most  frequently  where  options  have  been  given,  expiring  at  a 
certain  time.  In  such  cases,  the  courts  will  usually  hold  the 
purchaser  to  a  strict  compliance  with  the  terms  of  his  con- 
tract. They  will  not  require  the  owner  of  valuable  real  estate 
io  be  fettered  in  disposing  of  it  for  a  trifling  consideration. 
In  such  cases,  the  courts  will  usually  hold  the  purchaser  to  a 
strict  compliance  with  the  terms  of  his  contract.  The  prin- 
ciples by  which  the  courts  are  governed,  in  excusing  a  pur- 
chaser's delay,  are  often  extended  to  a  delinquent  seller.  He 
may  require  time  to  perfect  his  title  before  he  can  convey  in 
accordance  with  his  contract.  In  some  cases,  he  may  require 
specific  performance  where  he  is  not  able  to  make  title  to  the 
whole  of  the  property  which  is  the  subject-matter  of  the  con- 
tract. If  the  portion  which  he  cannot  convey  is  trifling  or 
insignificant  compared  with  the  whole,  and  is  not  in  itself  an 
essential  inducement  to  the  contract,  the  courts  will  require 
the  purchaser  to  take  what  he  can  convey  with  a  proper  abate- 
ment of  the  agreed  price. 

IT  IS  NOT  NECESSARY  TO  USE  A  FORMAL  LEGAL  DE- 
SCRIPTION OF  LAND  IN  ORDER  TO  MAKE  A  VALID  CON- 
TRACT. 

Usually,  in  deeds  and  in  formal  contracts,  land  is  described 
as  a  definite  part  of  land  of  which  there  is  public  record. 
Large  tracts  are  described  as  a  part  of  certain  section  in  a 
certain  township;  city  and  village  property,  as  lots  on  a  cer- 
tain plat  which  is  recorded.  But  a  perfectly  valid  contract 
may  be  made  by  using  any  description  which  identifies  the 
property.  As,  for  instance,  "the  premises  now  occupied  by  S. 
Jones,  on  the  north  side  of  Fort  street,  in  the  City  of  Lansing,'' 
or  "my  homestead  in  Boston,"  or  "the  property  which  I  bought 
of  Senator  Hearst  in  California."  The  legal  doctrine  is  that 
a  thing  is  sufficiently  certain  and  definite  which  can  be  made 


LAND   CONTRACTS.  521 

certain  by  a  reference  to  extrinsic  circumstances.  The  law 
will  inquire  into  the  facts  so  as  to  give  effect,  if  possible,  to 
the  real  intent  and  meaning  of  the  parties.  If  there  are  two 
pieces  of  property,  either  of  which  will  answer  the  description, 
usually  it  is  permissible  to  prove  which  was  intended.  But 
there  is  one  exception.  If  language  is  used  which  shows  on  its 
face  that  it  could  be  applied  equally  well  to  different  pieces  of 
property,  it  is  insufficient,  and  no  evidence  will  be  received  to 
make  it  good.  For  instance,  a  contract  calling  for  "a  brick 
house  in  Brooklyn''  could  never  be  made  good. 

A  CONTKACT  TO  SELL  DOES  NOT  GIVE  A  BIGHT  OF  POS- 
SESSION, UNLESS  IT  IS  SO  STIPULATED  IN  THE  CONTRACT. 

The  right  to  the  possession  and  enjoyment  of  seal  estate  is 
in  the  person  who  holds  the  legal  title.  He  does  not  part  with 
this  right  by  simply  agreeing  to  sell.  The  purchaser  has  no 
right  to  possession  before  he  gets  his  deed,  unless  it  is  ex- 
pressly agreed  in  the  contract.  If  there  is  a  provision  in 
The  contract  giving  the  purchaser  the  right  of  possession  be- 
fore he  gets  his  deed,  he  must  strictly  comply  with  the  terms 
of  the  contract,  in  order  to  retain  his  right  to  the  possession, 
although,  as  has  been  explained,  he  may  not  forfeit  his  right 
to  a  deed  by  a  default  in  his  payments. 

HOW  THE  RECORD  TITLE  OF  REAL  ESTATE  IS  EXAM- 
INED. 

With  few  exceptions,  all  titles  to  land  in  this  country  begin 
in  a  grant  from  the  British  Crown  or  in  a  patent  from  the 
United  States.  All  of  the  States  have  provided  for  the  record- 
ing of  writings  affecting  the  title  to  real  estate.  It  is  to 
these  public  records  that  recourse  is  had  when  it  is  necessary 
to  examine  a  title.  They  afford  what  is  called  "constructive" 
notice  of  the  state  of  the  title.  That  is,  everybody  has  a  right 
to,  and  is  presumed  to  examine  these  records.  And  he  is 


522  LAND   CONTRACTS. 

treated  in  law  just  as  though  he  had  examined  them,  and  knew 
what  they  contained.  This,  however,  is  true  only  of  writings 
which  the  law  authorizes  to  be  recorded.  If  instruments  are 
recorded  whose  record  is  not  authorized  by  law,  nobody  is 
obliged  to  take  notice  of  their  contents,  and  their  record  is  not 
constructive  notice.  The  difference  between  actual  and  con- 
structive notice  may  be  illustrated  in  this  way:  If  A  gives  B 
a  deed  of  land,  it  is  not  entitled  to  be  recorded  in  most  of  the 
States  unless  it  is  witnessed  and  acknowledged.  Neverthe- 
less, as  between  A  and  B  it  is  a  good  deed,  and  passes  the 
title.  If  this  instrument  is  actually  recorded,  its  record  is  of 
no  effect.  If,  after  selling  to  B,  A  offers  to  sell  the  land  to  Cr 
and  C  buys  in  good  faith,  having  no  actual  knowledge  or  notice 
of  this  deed,  whether  it  is  recorded  or  not,  his  title  will  be 
superior  to  B's.  If  C  has  actual  knowledge  or  notice  of  the 
deed,  B's  title  is  superior,  wrhether  or  not  his  deed  is  recorded, 
because,  as  we  have  seen,  "the  law  will  not  protect  one  who 
buys  real  estate  in  violation  of  what  he  knows,  or  has  notice, 
are  the  just  rights  of  a  third  person."  But  if  B's  deed  is  prop- 
erly witnessed  and  acknowledged,  then  its  record  is  construct- 
ive notice  to  C,  whether  he  has  any  actual  knowledge  of  it  or 
not.  Indexes  of  the  records  are  provided,  in  which  the  names 
of  the  parties  are  entered,  and  by  means  of  which  the  chain 
of  conveyances  can  be  traced.  If  John  Smith  now  owns  the 
property,  search  is  made  for  the  deed  by  which  the  property 
is  conveyed  to  him.  In  this  deed  will  be  found  the  name  of 
the  person  from  whom  he  purchased.  A  further  search  will 
reveal  the  person  from  whom  that  one  purchased,  and  so  on 
back  through  the  chain  until  the  government  patent  is  reached. 
Each  of  these  conveyances  must  be  examined  to  see  that  it  is 
perfect.  Supposing  that  there  is  a  plain  succession  of  deeds, 
and  that  the  examination  is  so  far  satisfactory,  a  new  branch 


LAND   CONTRACTS.  523 

of  inquiry  must  then  be  entered  upon.  The  records  must  be 
searched  to  see  whether  any  of  these  owners  mortgaged  the 
land,  or  whether  any  other  valid  lien  attached  to  it  while  it 
was  his  property.  In  some  of  the  States,  all  judgments  be- 
come a  lien  on  the  real  property  as  soon  as  they  are  entered. 
In  other  States  it  is  necessary  to  sue  out  an  execution  and 
make  a  specific  levy,  which  is  recorded.  Other  liens  are  those 
resulting  from  attachments,  mechanics1  liens,  recorded  land 
contracts,  recorded  leases,  rights  of  way,  etc.  The  statutes 
also  provide  for  recording  notice  of  a  suit  which  has  been 
begun  to  enforce  the  specific  performance  of  a  contract  for 
the  sale  of  land,  or  to  foreclose  a  mortgage  or  mechanic's  lien. 
It  is  called  notice  of  lis  pendens,  two  Latin  words,  signifying 
pending  law  suit.  If  mortgages,  attachments,  execution  levies, 
judgments,  mechanics'  liens,  are  found,  then  search  must  be 
made  to  see  that  the  land  has  been  properly  and  legally  freed 
from  these  encumbrances,  or  that  they  are  outlawed.  Search 
must  also  be  made  to  see  that  there  is  no  existing  lien  for 
unpaid  taxes.  If  any  of  the  owners  got  title  through  a  mort- 
gage foreclosure  or  an  execution  sale,  the  examiner  must  sat- 
isfy himself  that  the  proceedings  to  sell  were  regular  and 
valid.  If  any  of  the  owners  got  title  through  a  will  or  by  in- 
heritance, the  examiner  must  satisfy  himself  of  the  validity 
of  the  probate  of  the  will,  and  in  case  of  inheritance  who  were 
the  legal  heirs.  In  this  latter  case,  he  must  also  see  that  the 
lien  to  which  the  real  estate  of  a  deceased  person  is  subject  for 
his  debts  has  been  properly  discharged.  It  will  thus  be  seen 
that  in  many  cases  the  examination  of  a  title  to  land  requires 
very  extensive  legal  knowledge,  and,  as  has  been  stated,  even 
courts  and  judges  are  not  always  agreed  with  regard  to  its 
validity. 


524  LAND   CONTRACTS. 

An  abstract  of  title  is  simply  an  index  or  memorandum 
showing  what  instruments  have  been  recorded  and  where  they 
are  to  be  found.  It  is  in  itself  no  guaranty  of  a  good  title,  as 
it  is  said  some  buyers  ignorantly  supjjose.  On  the  contrary, 
it  frequently  shows  the  weakness  of  the  title  to  which  it  refers. 

THE  PURCHASER  OF  LAND  WHICH  LIES  ALONG  A 
STREET,  ROAD  OR  WATER-COTTRSE  GETS  TITLE  TO  THE 
LAND  TO  THE  CENTER  OF  THE  STREET,  ROAD  OR  WATER- 
COURSE, UNLESS  IT  DISTINCTLY  APPEARS  FROM  THE  DEED 
THAT  THE  SELLER  INTENDED  OTHERWISE. 

The  private  ownership  of  land  extends  TO  the  center  of  the 
highway  by  which  it  is  bounded.  The  public  has  certain  rights 
in  streets  and  highways,  but  it  does  not  ordinarily  own  the  soil. 
The  title  to  this  is  in  the  adjacent  proprietor.  Neither  the  public 
nor  an  individual  has  any  more  right  to  dig  and  carry  away 
gravel,  to  cut  sod,  to  gather  fruit,  or  to  pasture  stock  along 
the  road  than  it  has  inside  of  a  man's  fence.  For  doing  these 
things  a  man  has  the  same  private  right  of  redress  that  he 
would  have  if  they  were  done  inside  of  his  enclosure.  Pri- 
vate ownership  also  extends  to  land  covered  by  water,  except 
in  the  case  of  the  sea,  the  great  lakes  and  navigable  rivers. 
Therefore  the  courts  in  this  country  generally,  but  not 
universally,  hold  that  those  who  own  land  along  the  bank 
of  a  river,  own  the  land  under  the  water  to  the  center  of  the 
main  channel,  or,  as  it  is  usually  expressed,  "to  the  thread  of 
the  stream."1  The  owner,  therefore,  exclusively  has  the  right 
of  fishing,  the  right  to  cut  ice,  and  to  make  such  other  private 
uses  of  the  property  as  do  not  interfere  with  th'e  public  right 
of  navigation.  The  land  under  small  inland  lakes  is  also 
owned  in  the  same  way  by  the  adjacent  proprietors.  In  con- 
tracts for,  or  deeds  of,  land  lying  along  a  highway  or  a  water 

:Lorman  vs.  Benson,  8  Mich.,  18;  Oliver  vs.  Olmetead,  112  Mich.,  483. 


LAND   CONTRACTS.  525 

course,  it  matters  little  what  form  of  description  is  used.  The 
presumption  of  the  law  is  in  all  cases  that  the  seller  intends 
to  convey  as  far  as  he  owns,  unless  it  clearly  appears  from 
the  contract  or  deed  that  the  seller  intended  to  reserve  to  him- 
self the  land  between  the  line  of  the  lot  and  the  center  of  the 
road,  or  between  the  bank  and  the  middle  of  the  stream. 

THE  DEED  CONTROLS  ALL  PREVIOUS  AGREEMENTS  AND 
STIPULATIONS. 

Any  condition  or  stipulation  which  the  parties  have  agreed 
to  in  a  contract  for  the  sale  of  real  estate,  in  order  to  be  effect- 
ual, must  be  inserted  in  the  deed  itself.  A  verbal  reservation 
of  the  right  to  take  away  crops  or  other  things  belonging  to  the 
land,  will  not  avail  against  a  deed  which  makes  no  mention  of 
it.  So  of  an  agreement  to  build  only  in  a  certain  way.  or  to 
use  the  land  only  for  a  specified  purpose,  or  any  other  special 
contract  tending  to  qualify  or  limit  the  rights  which  the  pur- 
chaser gets  under  an  absolute  deed.  • 

IF  A  TRACT  OF  LAND  SUBJECT  TO  A  MORTGAGE  IS  SOLD 
OFF  IN  PARCELS,  THE  PARCELS  FIRST  SOLD  ARE  THE  LAST 
TO  BE  SOLD  ON  A  FORECLOSURE  OF  THE  MORTGAGE. 

It  frequently  occurs  that  a  large  tract  of  land  subject  to 
a  mortgage,  is  sold  off  in  parcels.  If  afterwards  the  mortgage 
is  foreclosed,  only  so  much  as  is  necessary  to  satisfy  the  amount 
due  the  mortgage  can  be  sold.  In  such  a  case,  if  any  of  the 
tract  has  been  retained  by  the  mortgagor,  that  must  first  be 
sold.  After  this,  the  parcel  that  was  last  sold  by  him,  after 
that  the  next  last  parcel  that  was  sold,  and  so  in  the  inverse 
order  of  alienation,  until  enough  has  been  realized  to  satisfy 
the  amount  due.  In  buying  land  subject  to  a  mortgage,  if  the 
deed  recites  that  the  purchaser  assumes  and  agrees  to  pay  the 
mortgage,  he  becomes  personally  liable  to  do  so,  and,  in  case 


526  LAND   CONTRACTS. 

of  foreclosure,  he  may  be  held  for  any  deficiency  if  the  property 
does  not  bring  enough  to  pay  the  mortgage.  Although  the  pur- 
chaser does  not  sign  the  deed  or  any  writing  to  pay  the  mort- 
gage, he  is  held  to  have  contracted  the  obligation  by  accepting 
the  deed  which  recites  it. 

THE  PURCHASER  OF  LAND  SUBJECT  TO  A  LEASE  SUC- 
CEEDS TO  ALL  THE  RIGHTS  OF  THE  LESSOR  AGAINST  THE 
TENANT. 

A  lease  is  not  put  an  end  to  by  the  sale  of  the  property, 
unless  it*is  stipulated  in  the  lease  that  it  shall  be.  In  such  a 
case  the  lease  immediately  terminates,  and  no  notice  to  quit 
is  required  before  taking  proceedings  to  obtain  possession.  If 
no  reservation  in  the  sale  is  made,  the  purchaser  is  entitled  to 
all  the  rent  which  falls  due  after  he  gets  his  deed,  although  a 
part  of  the  term  for  which  rent  is  payable  has  already  expired. 
If  the  rent  is  payable  monthly,  the  whole  of  the  next  month's 
rent  is  payable  to  the  new  owner.  The  rent  is  not  to  be 
divided,  like  the  interest  on  a  mortgage,  according  to  the  day 
on  which  the  transfer  occurs.  As  it  is  expressed  in  the  books, 
"rent  is  not  apportionable  in  respect  to  time." 

AN  AGENT  TO  SELL  REAL  ESTATE  CANNOT  EXECUTE  A 
DEED  UNLESS  HE  HAS  A  POWER  OF  ATTORNEY  UNDER 
SEAL. 

We  have  seen  that  generally  an  agent  has  no  authority  to 
make  a  written  contract  for  the  sale  of  real  estate  unless  he 
has  written  authority.  Real  estate  can  only  be  conveyed  by  a 
deed,  that  is,  by  an  instrument  under  seal,  except  in  those  States 
where  the  use  of  seals,  except  by  corporations,  is  made  unneces- 
sary by  statute.  Authority  to  execute  a  sealed  conveyance  can 
only  be  conferred  by  an  instrument  under  seal.  The  courts  are 
not  agreed  as  to  whether  a  general  power  of  attorney  to  convey 
real  estate  will  authorize  an  agent  to  bind  his  principal  by 


LAND   CONTRACTS.  527 

executing  a  warranty  deed.  Without  express  decisions  by  the 
courts,  both  of  the  State  where  the  property  is  situated  and 
where  the  deed  is  executed,  it  is  not  safe  to  take  a  warranty 
deed  from  one  acting  under  a  power  of  attorney,  unless  the 
power  of  attorney  expressly  authorizes  the  execution  of  the 
kind  of  deed  which  is  to  be  given.  There  is  also  a  conflict  of 
decision  as  to  whether  a  deed  executed  with  the  name  of  the 
purchaser  left  blank  is  a  good  deed,  when  the  name  of  the 
purchaser  is  filled  in  by  an  agent.  Such  a  deed  ought  not  to 
be  accepted  except  under  the  advice  of  a  skilled  conveyancer. 
A  purchaser  of  real  estate  from  one  acting  under  a  power  of 
attorney  should  always  see  that  the  power  of  attorney  is  prop- 
erly recorded. 

HTTSBAND  AND  WIFE  SHOULD  BOTH  SIGN  THE  SAME 
CONTRACT  OB  DEED. 

Generally,  in  the  United  States,  the  wife's  real  estate  can 
only  be  conveyed  by  the  joint  deed  of  husband  and  wife.  In 
some  of  the  States  she  can  now  convey  her  real  estate  without 
the  husband's  joining  in  the  deed.  It  is  also  generally  true 
that  a  wife  can  only  bar  her  dower  by  joining  in  her  husband's 
deed.  Land  owned  by  a  husband  and  wife  jointly  can 
only  be  conveyed  by  their  joint  act.  This  is  also  true 
with  regard  to  homesteads.  In  the  case  of  joint  property, 
the  separate  deed  of  either  husband  or  wife  is  absolutely  void. 
Consequently,  a  purchaser  would  acquire  no  title  whatever  by 
getting  first  a  deed  from  one  and  then  from  the  other.  This 
is  also  generally  the  law  in  all  of  the  cases  enumerated.  This 
is  a  matter  largely  regulated  by  statute.  But  in  dealing  with 
husband  and  wife,  the  purchaser  should  always  have  both  join 
in  the  same  deed,  unless  there  is  express  authority  for  a  differ- 
ent course  in  the  State  where  the  business  is  transacted  and  in 
the  State  where  the  property  is  situated. 


528  LAND  CONTRACTS. 

CONTRACT  WITH  A  CORPORATION. 

One  of  the  distinguishing  characteristics  of  a  corporation 
is  the  possession  of  a  corporate  seal,  which  may  be  considered, 
practically,  as  the  signature  of  the  corporation.  In  buying  real 
estate  from  a  corporation  the  most  careful  conveyancers  require 
the  following:  First,  that  a  proper  resolution  be  adopted  by 
the  board  of  directors,  trustees,  or  other  governing  body, 
authorizing  the  conveyance.  Then,  that  a  duly  certified  copy 
of  the  resolution  be  attached  to  the  deed  and  be  recorded  with 
it.  The  corporate  name  and  seal  are  to  be  attached  by  the 
proper  officers.  The  ordinary  form  of  execution  is  as  follows: 

In  testimony  whereof,  The  Dakota  Land  Company  has 
caused  its  corporate  seal  to  be  hereto  affixed,  and  these  pres- 
ents to  be  executed  by  its  president  and  secretary,  this  30th 

day  of  November,  A.  D.  1889. 

THE  DAKOTA  LAND  COMPANY, 

BY  JOHN  SMITH,  President,  and  (Corporate) 
THOMAS  JONES,  Secretary.          (Seal.) 

The  form  of  acknowledgment  is  as  follows:  '-Personally 
appeared  John  Smith  and  Thomas  Jones,  known  to  me  to  be 
respectively  president  and  secretary  of  the  Dakota  Land  Com- 
pany, and  severally  acknowledged  the  foregoing  instrument  to 
be  the  free  act  and  deed  of  the  Dakota  Land  Company,  and 
that  they  executed  the  same  for  the  uses  and  purposes  therein 
mentioned. 


CHAPTER  VI. 

CAPACITY  TO  HOLD  OR  CONVEY  TITLE  TO  REAL  PROPERTY. 
WHO  MAY  BE  GRANTEE  OF  AN  INTEREST  IN  REAL  PROP- 
ERTY? 

In  order  that  one  may  hold  or  acquire  title  to  real  property, 
it  is  not  essential  that  he  should  possess  the  power  to  contract 

It  follows  that  a  disability  in  a  grantee,  which  prevents  the 
making  of  a  legal  contract,  does  not  prevent  the  vesting  of  a 
valid  title  to  realty.  Married  women,  infants,  and  persons  non 
compos  mentis  may,  therefore,  take  as  grantees. 

The  only  requirement  as  to  a  grantee  seems  to  be  that  in 
the  case  of  a  grant  in  praesenti,  the  grantee  must  be  in  esse. 

A  grant  which  attempts  to  vest  a  present  interest  in  one  not 
yet  born,  is  void.  A  grant  to  one  not  in  existence  in  the  way 
of  a  remainder,  and  which  is  supported  by  a  particular  estate 
vested  in  one  who  is  living,  is  valid. 

While  the  title  vests  in  one  under  disability  on  the  making 
of  the  grant,  yet  such  conveyance  may  be  disaffirmed  by  such 
grantee  after  the  removal  of  the  disability.  Thus,  in  the  case 
of  a  grant  to  an  infant,  the  latter  may  on  coming  of  age,  re- 
fuse to  affirm  the  conveyance,  or  accept  the  property.1 

As  a  general  rule,  the  infant  will  be  held  to  have  affirmed 
ihe  conveyance,  if,  after  coming  of  age,  he  continues  in  the  pos- 
session of  the  property,  or  in  the  exercise  of  the  rights  of  own- 
ership over  it. 

CORPORATIONS. 

A  corporation  which  has  a  capacity  to  hold  real  property 
may  also  be  a  grantee.  Whether  or  not  a  corporation  has  this 

lMcCarty  vs.  Woodstock  Iron  Co.,  92  Ala.,  463;  12  L.  R.  A.,  136. 

M 


530  CAPACITY  TO  HOLD  OK  CONVEY  TITLE  TO  HEAL  PROl'KKTY. 

capacity,  depends  upon  the  powers  or  capacities  which  were 
given  it,  either  expressly  or  by  implication  in  its  charter. 

As  a  general  rule,  any  corporation  may  take  and  hold  realty, 
if  it  is  not  inconsistent  with  the  purposes  for  which  it  was 
created.2  And  a  corporation  may  take  a  title  in  fee,  notwith- 
standing the  fact  that  its  franchise  is  limited  to  a  certain 
number  of  years. 

In  many  States  the  statutes  provide  that  a  corporation  may 
not  hold  over  a  certain  amount  of  real  property. 

ALIENS. 

At  the  common  law,  an  alien  while  he  could  not  convey  an 
interest  in  realty,  might  take  by  grant,  or  devise,3  and  his  title 
could  be  asserted  against  everyone  except  the  State;  but  he 
could  not  take  by  descent  since  he  had  no  inheritable  blood. 

In  most  States,  by  statute  aliens  may  now  hold  and  convey 
real  property,  in  the  same  way  as  a  native  citizen.4 

WHO  MAY  CONVEY  REAL  PROPERTY? 

ANY  PERSON  CAPABLE  OF  HOLDING  REAL  PROPERTY, 
AND  NOT  UNDER  A  LEGAL  DISABILITY  MAY  CONVEY  IT. 

To  constitute  a  valid  conveyance  the  grantor  must  have 
an  interest  in  real  property,  and  he  must  be  legally  competent 
to  convey  it. 

*In  Thompson  vs.  Waters,  25  Mich.,  214-227,  the  Court  says: 

"Among  the  power  or  capacities  incident  to  a  corporation  at  com- 
mon law,  without  any  special  mention  in  their  charter,  was  that  of 
taking,  holding  and  conveying  lands;  and  these  incidents  still  remain, 
even  in  this  country.  *  *  *  *  The  act  of  incorporation,  in  effect, 
gives  to  the  corporation  substantially  the  powers  and  facilities  of  ,ci 
natural  person,  except  as  they  are  in  some  way  restrained  by  the  act 
of  incorporation,  or  some  other  law  of  the  State  creating  it." 

*An  alien  could  not  at  common  law  take  by  descent  or  operation 
of  law.  Crane  vs.  Reeder,  21  Mich.,  24. 

*In  some  States  the  disability  has  not  been  entirely  removed.  In  a 
few  States,  only  those  aliens  who  .have  declared  their  intention  to  be- 
come citizens  are  accorded  the  same  rights  as  native  citizens. 


CAPACITY  TO  HOLD  Oil  CONVEY  TITLE  TO  REAL  PROPERTY.  531 

Whether  or  not  a  grantor  is  legally  competent  to  make  ;i 
deed,  depends  on  his  capacity  to  enter  into  a  valid  contract. 

(a)     INFANTS. 

An  infant  not  being  capable  of  entering  into  a  valid  con- 
tract, cannot  by  grant  vest  in  his  grantee  an  absolute  and  in- 
defeasible title. 

While  this  is  so,  yet  an  infant's  conveyance  for  a  considera- 
tion is  not  absolutely  void,  but  is  merely  voidable;  and  he  may 
on  reaching  his  majority  affirm  or  disaffirm  it. 

The  purpose  of  the  law  in  permitting  infants  to  affirm  or 
disaffirm  a  contract  made  during  infancy,  is  that  the  infant,  by 
reason  of  his  youth  and  inexperience,  is  liable  to  be  imposed 
upon  and  overreached.  The  law,  therefore,  permits  him,  after 
he  has  arrived  at  a  period  at  which  he  is  deemed  to  be  able  to 
judge  for  himself,  to  determine  whether  his  previous  acts  have 
been  beneficial  or  prejudicial.3 

We  may  formulate  the  following  propositions: 

AN    INFANT'S    DEED  IS  VALID  UNTIL  DISAFFIRMED. 

In  some  States  it  has  been  held  that  an  infant's  deed,  with- 
out consideration,  or  which  on  its  face  is  prejudicial  to  his  in- 
terests, is  void  and  not  voidable.6  In  most  States  the  rule  is 
that  the  infant  must  disaffirm  all  conveyances,  whether  there 
is  a  consideration  or  not.7 

AN  INFANT'S  DEED  WILL  BE  DISAFFIRMED  BY  ANY 
POSITIVE  ACT,  ON  HIS  ARRIVING  AT  HIS  MAJORITY,  WHICH 
CLEARLY  INDICATES  AN  INTENTION  TO  CLAIM  TITLE 
AGAINST  THE  CONVEYANCE  MADE  DURING  INFANCY. 

This  intention  may  be  manifested  in  many  different  ways; 
by  the  giving  and  recording  a  deed  of  the  same  property  to  an 


"Goodnow  vs.  Empire  Lumber  Co..  31  Minn..  -4i'>s. 

'Swafford  vs.   Ferguson.  3  Lea..   292. 

7Askey  vs.  Williams,  74  Tex.,  294;  5  L.  R.  A..  17(>. 


532  CAPACITY  TO  HOLD  OR  CONVEY  TITLE  TO  REAL  PROPERTY. 

other  person;  by  a  suit  to  cancel  the  deed;8  by  taking  posses- 
sion and  improving  the  property  conveyed;  by  payment  of 
taxes;  by  a  written  notice  of  disafflrmance.9 

AN  INFANT'S  DEED  WILL  BE  AFFIRMED  AFTER  HE  AR- 
RIVES AT  HIS  MAJORITY  BY  ANY  POSITIVE  ACT  OR  ACTS 
WHICH  INDICATE  AN  INTENT  TO  RATIFY  IT. 

The  following  acts  have  been  held  to  amount  to  an  affirm- 
ance: a  deed  affirming  the  deed  made  during  infancy;  the  re- 
tention and  use  of  land  taken  in  exchange;10  the  taking  a  lease 
of  a  portion  of  the  property  conveyed.11 

THE  INFANT'S  DEED  MAY  ALSO  BE  RATIFIED  AFTER  HE 
ATTAINS  HIS  MAJORITY  BY  CONDUCT,  WHICH,  WHILE  NOT 
AMOUNTING  TO  POSITIVE  ACTS  OF  AFFIRMANCE,  IS  SUCH 
AS  TO  EQUITABLY  ESTOP  HIM  FROM  DISAFFIRMING  HIS 
DEED. 

Thus,  where  the  infant,  after  attaining  his  majority,  stands 
by  and  permits  improvements  to  be  made  on  the  property;  or 
permits  a  sale  of  it  to  be  made  in  his  presence  without  assert- 
ing any  claim,  he  will  not  be  permitted  to  disaffirm  his  deed. 

IF  THE  INFANT,  AFTER  ATTAINING  HIS  MAJORITY,  RE- 
MAINS SILENT  AND  DOES  NOT  PERFORM  ANY  ACT  iNDI- 
CATING  AN  INTENT  TO  AFFIRM  THE  DEED,  AND  THE  CIR- 
CUMSTANCES ARE  NOT  SUCH  AS  TO  CREATE  AN  EQUITABLE 
ESTOPPEL,  HIS  RIGHT  TO  DISAFFIRM  THE  DEED  WILL  CON- 
TINUE UNTIL  THE  TIME  LIMITED  BY  THE  STATUTE  OF 
LIMITATIONS  TO  COMMENCE  A  SUIT  TO  RESCIND  HAS 
ELAPSED.12 

In  some  States  this  rule  does  not  prevail  and  an  infant  is 
only  allowed  a  reasonable  time  after  majority  to  disaffirm  hi«» 
contract;  and  in  such  States,  after  the  expiration  of  such  rea- 

•Englebert  vs.  Pritchett,  40  Neb.,  195;  26  L.  R.  A.,  177. 
Tunison  vs.  Chamblin,  88  111.,  378. 

McCarty  vs.  Woodstock  Iron  Co.,  92  Ala.,  463;  12  L.  R.  A.,  136. 
"Ellis  vs.  Alford,  64  Miss.,  8. 
"Irvine  vs.  Irvine,  9  Wall.  U.  S.,  619. 
"Prout  vs.  Wiley,  28  Mich..  163. 


CAPACITY  TO  HOLD  OR  CONVEY  TITLE  TO  REAL  PROPERTY.  533 

sonable  time,  the  infant's  deed  becomes  absolute,  notwith- 
standing the  fact  that  the  period  fixed  by  the  statute  of  limita- 
tions has  not  expired.13 

In  the  States  adopting  this  rule,  the  courts  are  of  the 
opinion  that  the  infant  is  adequately  protected  by  allowing  a 
reasonable  time,  and  that  any  further  extension  of  time  in 
which  to  disaffirm  his  deed  would  create  "an  engine  of  op- 
pression and  wrong  to  others."14 

THE  INFANT,  ON  THE  DISAFFIRMANCE  OF  HIS  CON- 
TBACT  OB  CONVEYANCE,  IS  REQUIRED  TO  RETURN  ~J 
MUCH  OF  THE  CONSIDERATION  RECEIVED  BY  HIM  AS  RE- 
MAINS IN  HIS  POSSESSION  AT  THE  TIME  HE  ELECTS  TO  DIS- 
AFFIRM, BUT  IS  NOT  REQUIRED  TO  RETURN  AN  EQUIVA- 
LENT FOR  SUCH  PART  THEREOF  AS  MAY  HAVE  BEEN  DIS- 
POSED OF  DURING  HIS  MINORITY,  (a) 

In  a  few  States,  however,  it  has  been  held  that  an  infant  in 
order  to  rescind  his  deed,  must  either  return  the  actual  consid- 
eration received  or  account  for  its  value.(b) 

(b)     MARRIED  WOMEN. 

At  the  common  law,  a  married  woman  was  absolutely  in- 
capacitated from  making  a  valid  deed. 

Her  deed  was  void  and  not  voidable,  and  was  incapable  of 
affirmance  by  any  act.  The  disability  of  the  common  law  has 
been  largely  removed  by  statute.  These  statutes  are  enabling 
acts,  and  must  be  strictly  complied  with;  otherwise  the  com- 
mon law  rule  will  prevail.  In  a  number  of  States,  by  statute  a 
married  woman  may  convey  her  real  property  in  the  same  way 
as  a  feme  sole. 

In  many  States  the  statutes  provide  that  the  husband  must 
join  with  the  wife  in  a  deed  of  her  property. 

"Engelbert  vs.  Pritchett,  40  Nt>b.,  195;  26  L.  R.  iAM  177. 

Askey  vs.  Williams,  74  Tex.,  294;  5  L.  R.  A.,  176. 
"Wallace  vs.  Lewis,  4  Harr.  (Del.),  75. 

(a)  Engelbert  vs.  Pritchett,  40  Neb.,  195. 

(b)  Locke  vs.  Smith,  41  N.  H.,  346. 


534  CAPACITY  TO  HOLD  OR  CONVEY  TITLE  TO  REAL  PROPERTY. 

The  student  ought  to'  consult  the  statutes  of  his  own  State 
in  this  regard. 

(c)     PERSONS  NON  COMPOS  MENTIS. 

The  deed  of  an  insane  person  is  governed  by  the  same  rule 
as  contracts  by  insane  persons. 

THE  DEED  OF  AN  INSANE  PERSON  IS  VOIDABLE  AND 
NOT  VOID. 

To  this  statement  there  are  some  exceptions. 

1.  In  many  States,  the  deed  of  an  insane  person  who  has 
been  found  to  be  insane  in  a  judicial  proceeding,  or  an  insane 
person  who  is  under  guardianship,  is  void  and  not  voidable.15 

2.  When  real  estate  is  purchased  from  an  insane  person 
in  good  faith,  before  a  judicial  finding  of  lunacy,  for  a  fair  and 
reasonable  consideration,  without  knowledge  of  the  insanity, 
the  deed  will  not  be  set  aside,  unless  the  parties  can  be  placed 
in  statu  quo.18 

3.  In  some  States,  the  deed  of  an  insane  person  is  void  and 
not  voidable.17 

THE  DEED  OF  ANY  PERSON  WHO  IS  NOT  INSANE,  BUT 
WHO,  AT  THE  TIME  OF  ITS  EXECUTION,  FROM  PERMANENT 
OR  TEMPORARY  CAUSES,  IS  INCAPABLE  OF  UNDERSTAND- 
ING THE  NATURE  OF  HIS  ACT  AND  ITS  CONSEQUENCES,  IS 
VOIDABLE  AND  MAY  BE  SET  ASIDE  BY  A  PROPER  LEGAL 
PROCEEDING. 

If  a  person  has  sufficient  mental  capacity  to  understand  the 
nature  of  the  deed  and  its  consequences,  the  fact  that  there 
are  mental  delusions,  weaknesses  or  infirmities,  will  not  affect 
the  validity  of  the  deed.  It  is  only  when  these  mental  delus- 


"Rennells  vs.  Gerner,  80  Mo.,  474. 
16Gribben  vs.  Maxwell,  34  Kans.,  8. 

Odom  vs.  Riddick,  104  N.  C.,  515;  7  L.  R.  A.,  118. 
"Rogers  vs.  Blackwell,  49  Mich.,  192. 

Farley  vs.  Parker,  6  Oregon,  105. 


CAPACITY  TO  HOLD  OK  CONVEY  TITLE  TO  HEAL  PROPERTY.  535  • 

ions  and  infirmities  operate  in  the  act  of  making  the  deed,  in 
such  a  way  as  to  prevent  an  understanding  and  intelligent 
assent,  that  they  render  the  deed  voidable. 

Thus,  if  a  monomaniac,  or  one  having  a  mental  weakness, 
makes  a  deed,  and  notwithstanding  his  delusion  or  mental 
weakness,  he  is  still  capable  of  understanding  his  act  and  ex- 
ercising an  intelligent  judgment  as  to  whether  or  not  he  will 
make  it,  his  deed  will  be  valid.18  So,  in  the  case  of  an  intoxi- 
cated grantor,  if  at  the  time  of  making  the  deed  such  intoxi- 
cation affected  his  mental  faculties  to  the  extent  of  depriving 
him  of  an  understanding  of  the  nature  and  effect  of  his  act, 
the  deed  may  be  set  aside  on  showing  of  such  fact.  The  con- 
trary of  this  proposition1  is  true. 

The  law  on  this  subject  may  be  summarized  as  follows:     . 

WEAKNESS  OF  UNDERSTANDING,  MENTAL  DELUSIONS 
AND  INFIRMITIES  AND  INTOXICATION  DO  NOT  IN  THEM- 
SELVES RENDER  A  CONTRACT  VOIDABLE,  IF  THE  CAPACITY 
REMAINS  TO  UNDERSTAND  AND  SEE  THINGS  IN  THEIR 
TRUE  RELATIONS  AND  TO  FORM  CORRECT  CONCLUSIONS.1* 

Thus,  it  was  held  that  a  belief  in  spiritual  manifestations 
and  in  having  had  communication  with  deceased  persons  is  not 
necessarily  evidence  of  such  a  disordered  mental  condition  as 
to  make  one  incompetent  to  make  a  conveyance  of  real  estate.20 

While  the  legal  principles  on  this  subject  are  well  settled, 
yet  it  is  frequently  difficult  to  tell  within  which  principle  any 
particular  case  ought  to  come. 

"The  doubtful  and  uncertain  point  at  which  the  disposing 
mind  disappears  and  where  incapacity  begins,  can  only  be 
ascertained  by  an  examination  of  the  particular  circumstances 

"Dennett  vs.  Dennett,  44  N.  H.,  531. 
"Dennett  vs.  Dennett,  44  N.  H.,  531. 
=°Lewis  vs.  Arbuckle.  85  Iowa.  335;  16  L.  R.  A.,  677. 


536  CAPACITY  TO  HOLD  OR  CONVEY  TITLE  TO  REAL  PROPERTY. 

of  each  case,  to  be  duly  weighed  and  considered  by  the  court 
or  jury;  and,  in  determining  the  question,  the  common  sense 
and  good  judgment  of  the  tribunal  must  be  mainly  relied  on." 

RATIFICATION. 

The  maker  of  a  voidable  deed,  by  reason  of  insanity,  mental 
weakness  or  intoxication,  may,  on  recovering  his  reason,  ratify 
his  deed  in  the  same  way  as  in  case  of  infancy. 

CORPORATIONS. 

A  corporation  capable  of  holding  real  property  may  transfer 
it  to  any  third  person  by  the  act  of  its  duly  authorized  officers 
in  the  way  prescribed  by  law. 

ALIENS. 

At  the  common  law  an  alien,  since  he  did  not  have  inherit- 
able blood,  could  not  acquire  the  title  to  real  property  by  de- 
scent or  operation  of  law. 

At  common  law  an  alien  could,  however,  take  and  hold  real 
property  by  grant  or  devise  subject  to  the  right  of  the  State  to 
confiscate  it.  The  process  by  which  the  State  took  an  alien's 
property  was  known  as  an  inquest  of  office.  An  alien,  there- 
fore, could  not  convey  property  conveyed  to  him  by  grant,  so 
as  to  vest  an  absolute  title  in  his  grantee,  but  he  might  trans- 
fer such  right  as  he  had  to  the  property  subject  to  the  right 
of  the  State  to  escheat  it. 


INDEX. 


ABANDONMENT— 

Of  homestead   122 

Destruction  of  easements  by 395 

Of  title  by  adverse  possession 443 

ABEYANCE— 

Of  freehold  not  allowed 308 

Absolute  estates 238 

ACCEPTANCE— 

Of  dedication  of  land  by  the  public 415 

ACCOUNTING— 

By  mortgagee 268 

Between  co-tenants 358 

ACCRETION— 

Title  to,  in  whom 12,  404-467 

Islands 466 

ACKNOWLEDGMENT— 

Of  deeds 488 

ACTIVE  TRUSTS— See  Trusts. 
ACTIVE  USES— See  Uses. 

ACT  OF  GOD— 

Waste  ensuing  from,  is  excusable 131 

May  excuse  performance  of  condition 241 

ADAPTATION  FOR  USE— See  Fixtures. 

ADMINISTRATOR— 

Sales  of  real  property  by 479 

ADOPTION— * 

Defined  and  considered .' 437 

537 


538  INDEX. 

ADULTERY— 

Of  wife,  effect  of,  in  barring  dower 92 

ADVANCEMENTS-^ 

What  are    440 

Essential  elements  of 444.) 

Intention  of  donor  controls 441 

May  be  made  in  real  or  personal  estate 441 

ADVERSE  POSSESSION— 

Nature  of  title  acquired  by 441 

Statute  of  limitations 441 

Favored  by  law 442 

Duration  of  adverse  possession 443 

Possession  must  be  continuous 444 

Possession  must  be  actual 445 

Meaning   of  possession 445 

Constructive  possession 446 

Color  of  title 447 

Possession  must  be  hostile 449 

Possession  must  be  open 450 

_  Possession  notorious 450 

Against  wftom  title  may  be  obtained 453 

As  against  infants 453 

Possession  must  be  exclusive 453 

Must  be  an  intent  to  assert  title 454 

Effect  of  adverse  possession 456 

Proof  of  adverse  possession 456 

AFFINITY— 

Defined  428 

AFTER-ACQUIRED  PROPERTY— 

May  be  mortgaged 273 

AFTER-ACQUIRED  TITLE— 

Grantor  by  warranty  deed  may  not  set  up 458 

AGENT— 

Execution  of  deed  by 162  and  526 

Authority  to  execute  deed,  how  conferred 162 

Leases    by 1G2-164 

AGREEMENT  TO  MORTGAGE— 

Treated  as  a  mortgage 257 


INDEX.  539 

ALIENATION— 

History  of 44 

Of    homestead 123 

Condition  against,  is  void 48 

By  husband  and  wife  defeats  dower 87 

Involuntary    4G8-4SO 

See  title  by  execution,  judicial  sales,  eminent  domain  and  infant 
and  guardian  sales. 

ALIENS— 

Capacity  to  take  and  hold  land 530 

Cannot  take  by  descent 438,  530 

Alien  woman  not  dowable  at  common  law 11 

Capacity  of,  to  convey  realty 536 

ALLODIAL— 

Land  in  United  States 46 

ALLUVION— 

Title  by 465 

ALTERNATE  REMAINDERS 326 

ANCESTOR— 

Defined 427 

ANCESTRAL  LANDS  AND  COLLATERAL  HEIRS 433 

ANNEXATION—  < 

As  test  of,  see  Fixtures. 

ANNUAL  CROPS— 

Not  real  property 17-19 

Sales  of  17 

Liable  to  execution  as  personal  property "17 

ANNULMENT  OF  MARRIAGE— 

Defeating  dower 68 

APPENDANT  POWERS— See  Powers. 

APPENDANT  EASEME-NT— See  Easements. 

• 
APPOINTEES— 

Of  power  defined,  see  Powers. 


540  INDEX. 

APPORTIONMENT— 

Of  rent 199-200 

APPURTENANCES— 

Defined  and  considered 192 

What  incidents  pass  as,  in  grant 192 

APPURTENANT  EASEMENTS— See  Easements. 

ARRANGEMENT— 

Of  the  orderly  parts  of  a  deed,  see  Deeds. 

ASSIGNMENT— 

Of  lease 179-182 

Of  dower,  see  Dower. 

Of  mortgagor's  interest 273 

Rights  of  assignee 274 

Of  mortgage  debt 277 

Equitable  assignment  of  mortgage 277 

Assignment  of  lease 180 

ATTESTATION— 

Of  deeds,  see  Deeds. 
Of  wills,   see   Devise. 

ATTORNEY— 

Power  of,  to  execute  deed 162,  526 

AT  WILL— See  "Tenancies  at  Will." 

AUCTION  AND  AUCTIONEER— 

Auction,  sales  by 511 

AUTRE  VIE— 

Estate  per,  what  are,  see  Life  Estates. 

AVULSION— 

Defined,  nature  and  operation 465 

BASTARDS— 

Cannot  inherit  at  common  law 436 

Statutory  provisions  relative  to 437 

May  take  by  devise 437 


INDEX.  541 

BENEFICIAL  POWER— See  Powers. 
BLOOD— See  "Half  Blood." 

BOUNDARIES— 

When  courses  and  distances  control 492 

Description  in  deeds 491 

Estoppel  to  deny  location  of 463 

Of  land  on  highway 523 

BREACH— 

Of  covenant  of  warranty,  action  for,  see  Warranty. 

BREACH  OF  CONDITIONS— 

Termination  of  estates  on  condition,  see  Estates  on  Condition. 

BUILDINGS— 

• 

Repairs  of 134 

CAESAREAN   OPERATION 63 

CANCELLATION— See  Deeds,  Devise. 
CANONS  OF  DESCENT,  see  Descent. 

CAPACITY— 

Personal,  to  hold  and  convey  realty 529-536 

CESTUI  QUE  TRUST— See  Trusts. 

CHARITABLE  TRUSTS— 

Denned  374 

CHATTEL  FIXTURES— See  Fixtures. 

CHATTELS  REAL— 

What    are 136 

CHILDREN— 

Birth  of,  requisite  to  courtesy 63 

Illegitimate,  cannot  inherit  at  common  law 436 

Posthumous,   may   inherit 435 

CHURCH  PEWS— 

As  subjects  of  property,  how  regarded 23 

CIVIL  LAW— 

Computation  of  relationship  by 420 


542  INDEX. 

COLLATERAL  HEIRS— 

Defined  42S 

COLLATERAL  POWERS— See  Powers. 
COLOR  OF  TITLE— 

Defined  and  distinguished  447 

COMMON— 

Tenancies    in 354 

Rights  of,  defined 354 

COMMON  LAW— 

Future  estates  at 309,    321 

Computation  of  relationship  by 429 

Theory  of  mortgage,   see  Mortgage. 

COMPENSATION— 

For  land  taken  under  right  of  eminent  domain,  see  Eminent 
Domain. 

COMPULSORY    PARTITION 357 

CONCEALMENT— 

Of  defects  by  landlord '205-208 

CONDEMNATION  OF  LAND— 

Under  power  of  eminent  domain,  see  Eminent  Domain. 

CONDITION— 

Estates  on,  see  "Estates  on  Condition,"  see  Deed,  Lease. 

CONDITIONAL  FEES— 

What  are 52 

CONDITIONAL  LIMITATION— 

What  is 245 

Distinguished  from  condition 246 

CONFIRMATION— 

Of  judicial  sales,  effect  of,  see  Judicial  Sales. 

CONQUEST— 

Title  by,  described 423 


INDEX.  54:.{ 

CONSANGUINITY— See  Descent 
CONSIDERATION— See  Deed,  Mortgage. 

CONSTRUCTION— 

Of  wills    508 

of   leases 176 

CONSTRUCTIVE  NOTICE— 

By  possession  172 

By  registration    484 

CONSTRUCTIVE  POSSESSION— 

In  acquisition  of  title  by  adverse  possession,   see  Adverse 
Possession. 

CONSTRUCTIVE  TRUSTS— See  "Trusts." 

CONTINGENT   ESTATES 311 

CONTINGENT  REMAINDERS— See  "Remainders." 
CONTINUOUS  EASEMENTS— See  Easements. 

CONTINUOUS  POSSESSION— 

In  acquisition  of  title  by  adverse  possession,   see  Adverse 
Possession. 

CONTRACT— 

For  purchase  and  sale  of  land,  nature  of 510,  528 

CONVENTIONAL  LIFE  ESTATES— See  Estates. 

CONVEYANCE— 

Who  may  convey 530 

Infants   531 

CONVEYANCES— See  Deeds.  Leases. 
Registration,  see  "Registration." 

COPARCENARY— 

Estates  in 351 

CORPORATIONS— 

Capacity  to  hold  and  convey  realty 529 

Contracts    with 527 

Conveyances  by 53ti 


544  INDEX. 

CORPOREAL  HEREDITAMENTS— 

Defined  and  classified 381 

COURSES  AND  DISTANCES— 
Description  of,  see  Deeds. 

CURTESY— 

Estates  by,  definition  and  origin 60 

Requisites  of  estate  by 60-61 

A    valid    marriage ftl 

'  Seisin  of  wife 61 

Birth  of  issue 63 

Death  of  wife 65 

Initiate  64 

Consummate 65 

What  estates  subject  to 62 

Equitable  estate  subject  to ^ 62 

How  barred: 

Annulment  of  marriage 65 

By  agreement  of  husband 65 

By  conveyance  of  husband 65 

By  exclusion  of  curtesy 66 

By  settlement 66 

Statutory  changes 66 

COVENANTS— 

In  leases  187,  188 

In  deeds,  see  Deeds. 

Running  with  the  land 183,  186 

Covenant  to  pay  rent 194,  204 

Covenant  to  repair 187 

Covenant  not  to  assign 188 

COVERTURE— \ 

Estate  during x. 59 

Power  of  husband  over  wife's  chattels  real 58.  59 

Power  of  husband  over  wife's  real  estate 59 

Statutory  changes , 59 

CREDITORS— 

Rights  of,  in  powers,  see  Powers. 

CY-PRES— 

Application  of  doctrine  of,  to  charitable  trusts 375 


INDEX.  545 

DATE— 

Whether  requisite  in  deeds 489 

Of  lease 189 

DEATH  OF  HUSBAND— 

Requisite  of  dower,  see  Dower. 

DEATH  OF  WIFE— 

Essential  to  curtesy,  see  Curtesy. 

DECREE— < 

For  deficiency  in  foreclosure , 295 

Of  sale  in  foreclosure 207 

DEDICATION— See  Highways.' 

DE  DONIS  CONDITIONALIBUS— 

Statute  of,  creating  estates  tail 53 

DEED— 

Defined 485 

Requisites  to  validity  of 481 

1.  Competent  parties 481 

2.  An  interest  to  be  conveyed 481 

3.  A  writing 481 

4.  Apt    words 482 

5.  Delivery    482 

In   Escrow 483 

6.  Recording   484 

Form  of  deed  485 

Deeds  poll  488 

Indentures 488 

Date  and  parties 489 

Consideration   490 

Words  of  limitation 491 

Description    491 

Monuments   492 

Habendurn  clause 493 

Covenant — 

For  warranty   494 

Against  encumbrances  494 

Quiet  possession 494 

DEFICIENCY— 

Decree  in  foreclosure 298 


546  INDEX. 

DEGREES  OF  RELATIONSHIP— 
How  computed,  see  Descent. 

DELIVERY— 

Of  deeds 482 

In  escrow 483 

See  Deeds.' 

DELUSIONS— 

Effect  on  capacity  to  convey 535 

DEPOSIT  OF  TITLE  DEEDS— 

May  be  a  mortgage 258 

DESCENDING  LINES— 

In  title  by  descent,  see  Descent 

DESCENT— 

Title  by   426 

Title  by,  defined 425 

Governed  by  arbitrary  rules 426 

What  descends  to  heirs 427 

Heirs i 428 

What   law   controls 423 

Title  by- 
Through  consanguinity  428 

Through  affinity 428 

Through  adoption  428 

Degree  of  relationship 429 

Canons  of   430 

Descending  and  ascending  lines 430 

Preference  of  males 431 

In  collateral  lines 432 

Primogeniture 431 

Ancestral  estates 433 

Who  may  inherit — 

Relations  of  half  blood 435 

Posthumous  children  435 

Illegitimate  children   436 

Adopted  children  437 

Aliens   438 

Murderers    438 

When  title  vests 439 

By  what  law  governed 439 


INDEX.  547 

DESCENT — Continued. 

No  one  heir  to  the  living 440 

Advancements    440 

DESCRIPTION— 

In  deeds,  see  Deeds. 

In  land  contracts 520 

In  leases,   see  Leases. 

DESTRUCTION— 

Of  vested  remainders,  see  Remainders. 
Of  contingent  remainders,  see  Remainders. 
Of  powers,  See  Powers. 
Of  easements,  see  Easements. 

DETERMINABLE  ESTATES— 
Curtesy  in,  see  Gurtesy. 
Dower  in,  see  Dower. 

DEVISE— 

Of  lands,  defined 498 

Conveyance  by,  origin  and  history 498 

What  may  be  devised 499 

Intention  governs •. 500 

How  intention  expressed 50O 

Essentials 500 

Who  may  make 502 

Writing    503 

Execution    503 

How  differs  from  a  deed 505 

Fraud  effect  of 505 

Undue   influence 505 

Revocation    507 

Construction    508 

By  what  law  governed 509 

DEVISES— 

Executory,  see  "Executory  Devise." 
Shifting,  see  "Shifting  Devise." 
Title  by,   see  Devise. 

DISABILITY  OF  PERSONS— 

Affecting  title  by  adverse  possession,  see  Adverse  Possession. 


548  INDEX. 

DISCHARGE— 

Of  mortgage,  see  Mortgage. 

DISCOVERY— 

Title  by,  described  by - 424 

DISSEISIN— 

Meaning  of  term,  see  Seisin. 

DISSEISOR— see  Adverse  Possession. 

DISTANCES— 
Description  by  courses  and 491 

DIVISION  LINES— 

Estopped  in  pais 463 

DIVORCE— 

Effect  of,  on  dower  right 94 

A  mensa  et  thoro  does  not  bar  dower 94 

DOMINANT  ESTATE— See  Easements. 

DOWER— 

Defined  67 

Requisites    < 68 

Marriage    68 

Seisin  of  husband 68-76 

Transitory  72 

In  what  estates 76 

In  what  property — 

Mortgaged  property  77 

Partnership  property   ,t 78 

Improvements    ,  79 

Mineral  lands  80 

Lands  sold  on  contract 80 

Money 82 

Wild  lands   S3 

Determinable  estates  81 

Equitable   estates 75 

Estates  in  expectancy 73 

Dower  out  of  dower 73 

Joint  estates  71 

Death  of  husband 83 

Inchoate  dower 83-85 


INDEX.  549 

DOWER — Continued. 

Consummate  dower 85 

Assigned  dower 87 

Quarantine    . . .. 85 

Assignment  86 

Of  common  right 87 

Against  common  right 87 

When  value  estimated 88 

Incidents,  see  Rights  and  Liabilities  of  Life  Tenants. 

How  defeated —  I 

1.  By  act  of  wife .88 

Release    88-91 

Estopped   91 

Abandonment  and  adultery 92 

2.  By  act  of  husband 92 

3.  By  act  of  legislature 94 

4.  Divorce    94 

5.  Eminent  domain  95 

6.  Dedication    95 

7.  Determination  of  husband's  estate 96 

8.  Partition  sale 96 

9.  Limitations 97 

10.  Election   97 

11.  Alienage  and  non-residence 98 

12.  Jointure   99 

13.  Ante-nuptial   settlement 100 

14.  Post-nuptial  settlement  101 

DRUNKARDS— 

Capacity  to  convey  real  property 535 

EASEMENTS— 

Defined    381 

Essential  qualities   381 

Distinguished  from  licenses 383 

Are  incorporeal    381-382 

Imposed  on  corporeal  property 382 

Negative  and  affirmative 383 

Licenses   383 

A  vested  fixed  interest 384 

Profits  a  prendre 384-5 

Appendant  or  appurtenant  and  in  gross 386-7 

Dominant  estate 385 

Servient  estate 386 


550  INDEX. 

BASEMENTS— Continued. 

How  created  387* 

By  grant  387 

Implied  grant 388 

Implied  reservation 380 

By  covenants 391 

By  prescription 391 

How  Lost — 

1.  By  merger 393 

2.  Release  394 

3.  Adverse  user   394 

4.  By  estoppel   395 

5.  By  misuser 396 

6.  Eminent  domain 396 

7.  Ceasing  of  purpose 397 

Rights  and  liabilities  of  owners  of  tenements 396 

See  Light  and  Air,  Party  Walls,  Highways,  Water,  Lateral 
and  Subjacent  Support. 

ELECTION— 

Testamentary  provision  in  lieu  of  dower.    See  Dower. 
Statutory  provision  in  lieu  of  dower.     See  Dower. 

ELOPEMENT— 

Defeating  dower.     See  Dower. 

EMBLEMENTS— 

What  are   17 

An  incident  of  life  estates 128 

EMINENT  DOMAIN— 

Nature  and  exercise  of  the  power 473 

All  real  property  subject  to  right  of 473 

Destruction  of  easement  toy 396 

When  property  may  be  taken 474 

Property  cannot  be  taken  for  a  private  use 473 

Who  may  exercise  power 477 

What  property  may  be  taken 477 

Compensation    478 

ENCUMBR A  NOE  S— 

Tenant  for  life  not  bound  to  pay  off 130 

Interesyt  on,  by  whom  paid 130 

Covenants  against  in  deed.    See  Deeds. 


INDEX.  551 

ENTAIL— 

See  "Estates  Tail." 

ENTIRETY— 

Estates  by,  nature  of 342 

Origin  of  estates  in 343 

Survivorship  incident  to  estate  in 346 

In  what  estates 346 

Inseverability  346 

Rights  during  coverture 347 

How  determined   348 

Statutory  changes  , 350 

ENTRY— 

Right  of,  to  defeat  estate  on  condition.     See  Conditions. 

EQUITABLE  ESTATES— See  Uses  and  Trusts- 
Dower  in   75 

i 

EQUITABLE  THEORY— 

Of  mortgage.    See  Mortgages. 

EQUITABLE  MORTGAGES— See  Mortgages. 

EQUITY—  -—--,...    j 

Merger,  doctrine  of,  in.     See  Mortgages. 

Jurisdiction  to  decree  specific  performance 513 

In  case  of  waste 134 

EQUITY  OF  REDEMPTION.     See  Mortgage. 

ESCHEAT— 

Acquisition  of  title  by 434 

ESCROW— See  Deed. 

Delivery  of  deed  in,  effect  of 483 

Delivery  in,  how  made 483 

ESTATE— 

Defined  42 

Classification  of 42 

Freehold   47 

Of  inheritance 47 

In  fee  simple 47 

Estates  tail    51 


552  INDEX. 

ESTATE— Continued. 

Fee  conditional  52 

Life  estates   55 

Per  autre  vie 55 

Conventional  life  estates •  55 

Legal  life  estate 58 

During  coverture  58-59 

Curtesy 60 

Dower 67 

Less  than  freehold 136 

Estates  for  year 139 

As  to  quality — 

On  condition 238 

Mortgages 248 

On  limitation  '. 245 

As  to  time  of  enjoyment 302 

..  In  possession  302 

In  expectancy 302 

As  to  number  of  owners 338 

Joint  estates 338 

Powers  distinguished  from 377 

For  years.    See  Landlord  and  Tenant. 
At  will.    See  Tenancies  at  Will. 
Trust  estate.    See  Trusts. 
Equitable.    S'ee  Uses  and  Trusts. 

ESTATE  AT  WILL.     See  Tenancies. 

ESTATES  BY  COVERTURE 59 

ESTATE  FOR  LIFE.     See  Life  Estates. 

ESTATE  FROM  YEAR  TO  YEAR.     See  Landlord  and  Tenant. 
ESTATES  FOR  YEARS.     See  Landlord  and  Tenant. 
ESTATES  IN  ENTIRETY.     See  Entirety.     ' 

ESTATES  IN  EXPECTANCY— 

See  "Future  Estates" 302 

ESTATES  IN  COPARCENARY   351 

ESTATES  ON  CONDITION— 

Definition   "  238 

Distinguished  from  estates  on  limitation 245 

j       Conditions  precedent  and  subsequent 239 


INDEX.  553 

ESTATES  ON  CONDITION— Continued. 

Performance  of 240-243 

Conditions  must  be  valid ' 243 

Who  may  perform 245 

Effect  of  invalid  conditions 245 

ESTATES  ON  LIMITATION— 

Denned  245-247 

Distinguished  from  estates  on  condition 246 

ESTATES  IN  PARTNERSHIP 351 

ESTATES  IN   POSSESSION 302 

ESTATES  TAIL— 

Denned   51 

Classes  of 51 

ESTATE  TAKEN  BY  PURCHASER— 
At  tax  sale.    See  Tax  Titles. 

ESTOPPEL— 

Defined  and  classified 457 

By  record,  what  is 457 

By  writing,  what  is 457 

By  will    457 

By  deed  .  . . .' 458 

By  warranty    458 

By  recitals  458 

In  pais  459 

Does  not  arise  from  deed  of  quit  claim 458 

To  assert  title 461 

To  deny  title  in  a  third  person 461 

Adjustment  of  boundaries 463 

ESTOVERS— 

Tenant  for  life  entitled  to 128 

EXECUTION— 

Title  toy 468471 

Definition 468 

Essentials    469-471 

When  title  passes 471 


554  INDEX. 

EXECUTOR— 

Deeds  and  conveyances  by 479 

EXECUTORS  AND  ADMINISTRATORS— 
As  parties  to  conveyances. 

EXECUTORY  DEVISES 333 

EXECUTORY  INTEREST   331 

EXEMPTIONS— 

See  "Homestead." 

EXPRESS  COVENANTS— 

Rights  of  landlord  and  tenant  under.    See  Leases. 
In  deeds.    See  Deeds. 

EXPRESS  TRUSTS— 

See  "Trusts."  • 

EVIDENCE— 

Parol,  admissibility  of,  to  prove  absolute  deed  a  mortgage. .. .     253 
Parol,  admissibility  of,  -to  vary  contract  for  sale  of  land 255 

EXCLUSIVE   POSSESSION— 

Necessary  in  acquisition  of  title  by  adverse  possession. 
See  Adverse  Possession. 

EXCLUSIVE  POWERS.     See  Power. 
EXECUTED  TRUSTS.     See  Trusts. 

EXECUTORY  DEVISES— 

Defined  .' 333 

FEE.     See  Estate  Tail. 

Meaning  of  47 

Words  necessary  to  create 48 

Incidents  to  estate  in 48 

FEE  CONDITIONAL— 

At  common  law 52 

FEE-SIMPLE— 

Defined  47 

Creation    48 


INDEX.  555 

FEE  SIMPLE— Continued. 

By  deed 48 

Words  of  limitation 48 

Alienation 48 

What  words  create  an  estate  in 48 

Exceptions , 49 

Nature  and  qualities  of — 

By  will    49 

FEE  TAIL— 

Estates  in,  defined 53 

FEUDAL  SYSTEM   42 

FICTITIOUS  PER'SO'N— 

Deed  to,  void 489 

FIRST  PURCHASER— 

Inheritance  of  ancestral  lands  by  issue  of.     See  Descent. 

FIXTURES— 

Defined  and  classified 26 

Real  and  chattel 26 

Intention  the  test  of  character 26,  31 

Character  determined  t>y  express  contract 35 

By  annexation 28,  32 

By  adaptation  for  use  of  realty 33 

By  party  making  annexation. 

Time  of  removal   38 

Gas  fixtures 27 

As  between  landlord  and  tenant 32 

As  between  owner  and  vendee 35 

Rights  of  purchaser  without  notice 27,  30 

FORECLOSURE. 
See  "'Mortgage." 

FRAUD— 

See  "Statute  of  Frauds." 

Effect  on  wills / 505 

FREEHOLDS— 

See  Estates. 

FRUOTUS  INDUSTRIALES— 

Defined  16, 17 


556  INDEX. 

PBUOTUS  NATURAUES    14 

When  considered!  real  property 17 

When  considered  personal  property 17, 18 

FURTHER  ASSURANCE— 
Covenant  for.    See  Deeds. 

FUTURE  ACCESSIONS— 

Covered  by  mortgage.    See  Mortgage. 

FUTURE  ADVANCES— 

Mortgages  for.    See  mortgage. 

FUTURE  ESTATES— 

Defined   302 

May  be  mortgaged.     See  Mortgage. 

Reversions.     See  Reversions 303 

possibility  of  reverter 306 

Remainders.     See  Remainders 307 

GRANT.    See  Deed,  Public  Grant,  Conveyances. 
GENERAL  POWERS.     See  Powers. 

GIFTS  TO  CHARITIES— 

Application  of  rule  against  perpetuities.    See  Perpetuities. 

GROWING  CROPS— 

Pass  under  a  deed  of  land,  when . . , 17 

Wlhen  a  part  of  tine  realty 17 

When  tenant  entitled  to.    See  Emblements. 

Subject  to  levy 18 

GROWING  TREES— 

Are  real  property. 14 

Right  to  fruit  of 15 

When  personal  property 20 

Contracts  for  sale  of 19 

On  dividing  line 16 

Sett  Waste. 

GUAHDIANS— 

Conveyances  by   479-480 


INDEX.  557 

HABENDUM. 

In  deed's,  office  of.    See  Deeds. 

HALF  BLOOD— 

Descent  to   435 

HEAD  OF  A  FAMILY— 
Who  is.     S'ee  Homestead. 

HEIRS— 

Import  of  word 427 

HEIR-LOOMS— 

What  are  *. 24 

HIGHWAYS— 

Defined   '  413 

Dedication  of   414 

As  boundaries 523 

HEREDITAMENTS— 

What  are  , 192 

HOMESTEAD— 

Origin  102-104 

Legislation  104 

Construction  of  statutes 105 

Nature  of  right 106 

Definition 107 

Head  of  a  family,  who  is 107 

Who  may  claim 107 

What  constitutes  a  family 108-111 

In  what  property  and  how  acquired 111-115 

Extent  of  exemption 115 

Urban  and  rural 116 

Occupancy,  as  a  home 111-115 

In  what  estates 118 

Privileged  debts — 

1.  Public  debts  119 

2.  Debts  contracted  before  passage  of  homestead  law. . . .  119 

3.  Debts  contracted  before  acquisition „• 120 

4.  Claims  of  vendor 121 

5.  Liabilities  for  tort 121 

7.  Liens  for  creation,  improvement  and  preservation ....  121 

8.  Liens  created1  by  husband  and  wife 121 


558  INDEX. 

HOMESTEAD— Continued. 
How  lost — 

By  abandonment 122 

By  alienation 123 

HOSTILE  POSSESSION— 

Necessary  in  acquiring  title  by  adverse  possession.   See  Ad- 
verse Possession. 

HUSBAND  AND  WIFE— 

As  tenants  by  entirety.     See  Entirety. 

Seisin  of  wife  essential  to  cortesy.     See  Curtesy. 

Seisin  of  husband  essential  to  dower.     See  Dower. 

ICE— 

May  be  considered  as  land,  when 12 

By  whom  owned 13-14 

IDIOTS— 

Capacity  to  hold  and  convey  real  property 534 

ILLEGITIMATE    CHILDREN    436 

IMBECILES— 

May  be  parties  to  deeds,  when 534 

IMPLIED  NOTICE.     See  Notice. 
IMPLIED  TRUSTS.     See  Trusts. 

IMPROVEMENTS— 

By  life  tenant 130 

INCORPOREAL  HEREDITAMENTS.     See  Hereditaments. 

Defined   381 

Kinds  of 381 

Easements.    See  Easements. 

ENCUMBRANCES— 

Covenant  against    494 

Life  tenant  must  pay  interest  on 130 


INDEX.  559 

INFANTS— 

May  be  grantee  in  deed 520 

Power  of  to  hold  and  convey  realty 531-533 

"When  statute  of  limitations  runs  against 453 

Disafflrmance  by 532 

Return  of  consideration 533 

INHERITANCE.     See  Descent. 

INSANE  PERSONS— 

Capacity  to  hold  and  convey  realty * 534 

INSURANCE— 

On  mortgaged  premises.    See  Mortgages. 

INTERESSE  TERMINI  148 

INTOXICATED   PERSONS— 

Deeds  by 535 

ISLANDS— 

When  title  to  is  in  the  State 466 

When  riparian  owners  entitled  to 466 

JOINT  ESTATES— 

Estates  in  severalty 338 

Curtesy  in   328 

Dower  in.     See  Dower. 

Defined 338 

Joint  tenancies  339 

Tenancies  in  common 354 

Estates  in  coparcenary 351 

Estates  in  entirety 342 

Estates  in  partnership 351 

Incidents  of 355 

Possession  and  disseisin 355 

Accounting  between  co-tenants 358 

Repairs  and  waste 134 

Transfer  of  356 

Interests  liable  to  execution. .  356 


560  INDEX. 

JOINT  ESTATES— Continued. 

Partition  356 

See  Joint  Tenancies,  Tenants  in  Common,  Estates  in  Co- 
parcenary and  Partnership  Tenancies  by  Entireties. 

JOINT  TENANCIES— See  Partition 339 

nature  of   339 

How  created  at  common  law 339 

Survivorship   341 

Dissolution  of 341 

Partition  of  342 

Statutory  changes  342 

JOINTURE.     See  Dower. 

JUDICIAL  PROCESS.    See  Judicial  Sales. 

JUDICIAL  SALES— 

Definition 471 

How  differs  from  sale  on  execution 472 

Nature  of  title  acquired 473 

LAND— 

What  embraced  in  term 4,  6 

Contracts  for  purchase  and  sale  of 510-528 

Lien  on,  for  purchase-money.    >See  Vendor's  Lien. 

LANDLORD  AND  TENANT.     See  Lease- 
Nature  of  relation 139 

Relation,  how  created 140 

Obligation  of  landlord 141 

Covenant  for  quiet  possession 142 

Obligations  of  tenant 142-144 

Estoppel  of  tenant  to  deny  title 143 

Origin  of  modern  tenancy 145-147 

Characteristics  of  tenancy 147 

Possession    148 

Effect  of  lease 151 

Possession  of  tenant  exclusive 151-153 

Landlord's  license  to  enter 153 

Trespass  by  landlord 154 

When  one  is  licensee  and  not  a  tenant; 155 

Leases.    See  Leases. 

LAPSED  DEVISES.     See  Devise. 


INDEX.  561 

LATERAL  AND  SUBJACENT  SUPPORT 399-403 

LEASE— 

Defined  157 

Leases  in  writing  under  seal 158 

Construction  of  leases 159 

When  seal  essential  160 

Authority  of  agent  to  execute 162 

Written  leases  not  under  seal 164 

Signing   165 

Lessor  only  need  sign 168 

Execution  of  lease 169-170 

Recording  lease   170 

Possession  is  notice 172 

Verbal  leases    172 

Implied  leases    173 

From  beneficial  use 174 

Construction  of 176 

Agreement  for  a  lease 177-179 

Sub  leases  179 

Assignment  of  lease  180 

Liability  of  assignee  '• .  •     182 

Covenants  that  run  with  the  land   183 

Rights  of  purchaser  of  leased  lands 525 

Parts  of  a  lease 186 

Date   186,     188 

Parties 186 

Operative  words  186,  190 

Description  of  premises 186,  190,  192 

The  term   186,  190,  192 

Restrictions  on  use 187 

Covenant  for  quiet  enjoyment 187 

Covenant  to  pay  rent— See  Rent 187,  194-204 

Covenant  to  repair  187 

Covenant  not  to  sub-let 188 

Lease  may  be  avoided  for  fraud  or  misrepresentation ....     204 

Concealment  of  defects  205-208 

Abandonment  by  tenant  when  justified 209 

Failure  of  consideration,  effect  on  payment  of  rent 210 

Destruction  of  building,  effect  of  breach  of  landlord  cov- 
enant to  repair 212 

Set  off  and  recoupment,  when  may  be  set  up 213 

Restrictions  on  use  of  premises 214 

Covenant  for  quiet  possession  216-218 

Forfeiture  right  of  entry  for 218 


562  INDEX. 

LEASE — Continued. 

Tenants  covenant  to  repair 220-223 

Covenant  not  to  sublet  or  assign 223-230 

Surrender  of  possession 230 

Covenant  for  renewal   230 

LEGAL  CAPACITY— 

To  hold  and  convey  realty 529-535 

Infants    529-531 

Persons  of  unsound  mind 534 

Drunkards  534 

Married  women  533 

Aliens 530,  536 

Corporations   529 

LESSEE— See  Leases. 
LESSOR— See  Leases. 

LEX  LOCI— 

Governs  title  by  devise 503 

LICENSES— 

Defined  416 

Creation   417 

Revocation  of   419-421 

Distinguished  from  easements 383 

May  be  created  by  parol 384 

Is  personal  to  -the  grantor 384 

License  of  landlord  to  enter  leased  premises 153 

LIEN— 

Vendor's,  an  equitable  mortgage — See  Mortgages. 
Vendee's,  an  equitable  mortgage. 

LIEN  THEORY— 

Of  mortgage — See  Mortgages. 

LIFE  ESTATES— See  Estates. 

Defined  and  classified 55 

Creation  of  55 

Kinds  of 55 

Per  autre  vie  55 

Conventional    < 55 

Legal    58 


INDEX.  563 

LIFE  ESTATES— Continued. 

Estate  and  that  of  remainderman  are  consistent,   independ- 

ant  and  distinct 124 

Life  tenant  entitled  to  rents  and  profits 127 

Life  tenant  may  alien  nig  estate 128 

Life  tenant  is  entitled  to  reasonable  estovers 128 

Life  tenant  is  entitled  to  emblements 128 

Liabilities  of  life  tenant — 

Must  pay  taxes 129 

Must  pay  interest  '. 130 

Must  make  repairs 130 

Must  riot  commit  waste 130-135 

LINEAL  RELATIONS— See  Descent. 

LUNATICS— 

Effects  of  deeds  of 534 

MALES— 

Preference  of,  in  descent — See  Descent. 

MANURE— 

When  part  of  realty 22 

When  deemed  personal  property 23 

MARRIAGE— 

A  requisite  of  Dower — See  Dower. 
A  requisite  of  curtesy — See  Curtesy. 

MARRIED  WOMEN—  , 

Caipacity  to  hold  and  convey  real  property 533 

Wills  of — See  Devise. 

MARSHALING— 

Of  mortgage  securities  525 

See  Mortgages. 

MERGER— 

Definition   280 

Of  mortgage 280 

Discharge  of  mortgage  by 281 

Destruction  of  easements  by ;. . .  393 

METALS— 

When    real    property 8 


564  INDEX. 

MINERALS— 

When  real  property ' 8 

MINES— 

When  opening  is  waste 133 

Included  in  term  "landT 8 

May  be  owned  as  separate  estate 8 

Of  gold  and  silver 9 

Widow  entitled  to  dower  in 80 

MINISTERIAL   SALES— 

Tax  titles  by— See  Tax  Titles. 

MISUSER— 

Of  easements,  destruction  by — See  Easements. 

MONUMENTS— See  Deed- 
Description  by,  in  deeds 492 

Effect  of,  in  fixing  boundaries 492 

MORTGAGE— 

History  of   248 

Definition  and  nature 249 

Derivation  of  the  term 248 

Common  law  theory  of 249-250 

Equity  of  redemption 250 

How  regarded  in  equity 249 

Lien  theory  251 

Form  of  mortgage 251 

Legal  mortgages 252 

Equitable  mortgages  252 

Absolute  deeds  intended  as  mortgages 253 

Parol  evidiemce  to  vary  absolute  deed 253 

When  deed  will  be  held  to  be  a  mortgage 254-255 

Absolute  deed  and  contract  for  reconveyance 255 

Trust  deeds  256 

Agreements  to  give  a  mortgage 257 

Deposit  of  title  deeds 258 

Vendor's  lien 261 

Relation  of  mortgagor  and  mortgagee 261 

Mortgagee  interest  at  common  law 261 

Modification  of  common  law  doctrines 262 

Tenancy  between  mortgagor  and  mortgagee 264-266 

Rights  and  liabilities  of  mortgagor 266-268 


INDEX.  565 

MORTGAGE — Continued. 

Rights  and  liabilities  of  mortgagee 268 

Consideration  of  mortgage 270-273 

Who  may  mortgage 273 

Assignment  of  mortgagor's  interest 273 

Assignee  not  liable  for  mortgage  debt 274 

Assignment  of  mortgagee  interest 276 

Rights  of  assignee 279 

Merger   280 

Subrogation 282 

Discharge  and  release 285 

Redemption    287 

Registration    289 

Foreclosure    293 

Strict  foreclosure 296 

Entry  and  possession 297 

Foreclosure  by  sale 297 

Effect  of  foreclosure  299 

Marshalling  assets    300 

MORTGAGEE— See  Mortgage. 
MORTGAGOR— See  Mortgage. 

MURDERERS— 

Cannot  take  from  victim  by  descent 438 

NAKED  POWERS— 
See  Powers. 

NATURAL  GROWTHS  14 

NATURALIZED  CITIZENS— 
Inheritance  by — See  Aliens. 

NOTICE- 
TO  terminate  tenancy  at  will 231 

To  terminate  tenancy  from  year  to  year 237 

To  terminate  tenancy  at  sufferance 230 

Constructive   172 

Possession — See  Adverse  Possession. 

Registration    484 

NOTICE  TO  QUIT— See  Notice. 


566  INDKX. 

NOTORIOUS  POSSESSION— 

Necessity  in  acquiring  title  by  adverse  possession. 
See  Adverse  Possession. 

NUMBER  OF  OWNERS— 

Estates  as  to— See  Joint  Estates. 

OILrS  AND  GAS— 

Nature  and  legal  characteristics  of 10 

Effect  of  severance   2» 

OWNERS— 

Number  of  Estates,  as  to— See  Joint  Estates. 

OWNERSHIP- 
NO  absolute  ownership  of  land  under  feudal  system. 
See  Feudal  Sytem. 

PAIS— 

Estoppel  in — See  Estoppel. 

PAROL  AGREEMENT— 

Merge  in  deed   524 

PAROL  DEFEASANCE— 

Mortgage  may  have — See  Mortgage. 

PARTICULAR  ESTATE— 

Preceding  a  remainder   307 

Destruction  of,  may  destroy  contingent  remainder 310 

Expiration  of,  may  destroy  contingent  remainder 316 

PARTITION — See  Tenancy  in  Common. 

Of  joint  estates  356 

Compulsory  356 

PARTNERSHIP— 

Estates  in,  defined   351 

Incidents  of  estates  held  in 353 

PARTY  WALLS— 

What  are 403 

Easements  in,  how  acquired 404 

Ownership  of  land  covered  by 404 

Use  of,  how  restricted 405 

Destruction  of  easements  in 406 


INDEX.  567 

PASSIVE  TRUSTS— See  Trusts. 

PER  AUTRE  VIE— 

Defined— See  Life  Estate. 

PER  CAPITA— 

Taking,  in  title  by  descent— See  Descent. 

PERFORMANCE— 

Of  conditions,  mode  of — See  Estates  Upon  Condition. 
Specific  .performance — See  Specific  Performance. 

PER  MY  ET  PER  TOUT— See  Joint  Estates. 

PERPETUITIES— 

Rule  against    336 

To  what  estate  the  rule  applies 337 

Application  to  charitable  trusts ,.,...<,,,.  337 

PERSONAL  CAPACITY— 

To  hold  and  convey  realty — See  Legal  Capacity. 

PERSONAL  COVENANTS— 
In  leases — See  Leases. 
In  deeds — See  Dee'ds. 

PERSONAL  INTERESTS  IN  LAND— See  Chattels  Real. 

PERSONAL  REMEDIES— 

In  foreclosure — See  Mortgages. 

PERSONAL  REPRESENTATIVES— 

Conveyances  of  land  by — See  Administrators. 

PERSONS  OP  UNSOUND  MIND— 

Power  to  hold  and  convey  realty 534 

PER  STIRPES— 

Taking,  in  title  by  descent — See  Descent  •         i 

PEWS— 

Nature  and  property  in ; 23 

POSSESSION — See  Adverse  Possession. 

Lessee's  exclusive  right  to 151 

Of  mortgaged  premises — See  Mortgages. 


INDEX. 

POSSESSION— Continued. 

Is  constructive  notice 172,     515 

Unity  of,  in  joint  tenancies — See  Joint  Tenancies. 
Of  joint  estates — See  Joint  Estate. 
Constructive — See  Adverse  Possession. 

POSSIBILITY— 

Of  reverter 306 

POSTHUMOUS  CHILDREN— 

Descent  to , 435 

POWER  OF  ATTORNEY— 

To  execute  a  deed 162,  526 

POWERS— 

Defined  and  classified 375 

Donor  defined 376 

Donee  defined 376 

Appointee  defined 376 

Distinguished  from  estates 377 

Common-law  power,  creation 379 

Classes  of,  as  to  donee — 

Appendant  and  in  gross t 376 

Collateral  or  naked  powers 376 

Classes  of,  as  to  appointees — 

General  Powers  377 

Special   377 

Execution — 

Form  of 379 

Time  of 379 

Compelling    380 

Defecttve   379 

Rights  of  creditors 380 

When  revocable  380 

PRECEDENT — See  Conditions  Precedent  and  Subsequent. 

PREFERENCE  OF  MALES— 

In  title  by  descent — See  Descent. 

PRESCRIPTION— See  Adverse  Possession. 

PRESENT  ESTATES— 

And  future — See  Estates  in  Possession. 


INDEX.  569 

PRIMOGENITURE— See  Descent. 

PRIORITY— 

Of  mortgages  and  other  conveyances — See  Mortgage. 

PRIVATE  PERSONS— 

Acquisition  of  title  by — See  Title. 

PROBATE— 

Of  wills— See  Devise. 

PROFITS  A  PRENDRE— 

Denned  and  illustrated 385 

How  distinguished  from  easements 385 

PROOF  OF  WILLS- 
HOW  made  and  effect  of — See  Devise. 

PROPERTY— 

Definition  1 

Real  and  personal,  importance  of  distinction 2 

Essential  qualities  of  real  property 4 

PUBLIC  TRUSTS— See  Charitable  Trusts. 
PUBLIC  WAYS— See  Highways. 

PURCHASE— 

Words  of,  in  deed — See  Deeds. 

Title  by 425 

QUARRIES— 

When  opening  is  waste — See  Waste. 

QUIET  ENJOYMENT— 

Covenant  by 494 

QUIT-CLAIM  DEEDS— See  Deeds. 

RAILROAD  CARS— 

Whether  real  fixtures 25 

REAL  PROPERTY— 

Nature  and  characteristics  of 4 

Estates  in.  defined 40 


570  INDEX. 

REAL  AND  PERSONAL  PROPERTY— 

Importance  of  distinction 


RECITALS  IN  TITLE  DEEDS— See  Deeds. 
Estoppel  by — See  Estoppel. 

RECORDS— 

Of  deeds  and  leases,  afford  notice,  when 17O 

REDEMPTION— See  Equity  of  Redemption. 

From  sale  on  execution 471 

RE-ENTRY— 

For  forfeiture — See  Estates  on  Condition. 

REGISTRATION— See  Deed,  Mortgage. 

RELATIONSHIP— 

By  Consanguinity  and  affinity 428 

Degree  of 42S-42O- 

RELEASE—" 

Of  dower  by  wife — See  Dower. 

RELICTION— 

Considered  as  a  form  of  title 465 

REMAINDERMAN— 

Adverse  possession  against — See  Adverse  Possession. 

REMAINDERS— 

Defined 307 

How  created 303 

Is  remnant  of  an  estate 307 

Dependant  on  prior  estate 307 

Created  by  grant 300 

Must  vest  in  grantee „ .  300 

Must  not  abridge  particular  estate 31X> 

Vested    311 

Essentials  of  vested  remainder,  test  as  to  whether  vested 

or  contingent 3121 

Not  subject  to  rule  against  perpetuities 317 

May  be  transferred  and  devised 310 

Contingent 310 

Distinguished  from  vested 32O 


INDEX.  571 

REMAINDERS— Continued. 

Estates  which  will  support 321 

New  York  Code  definition,  test  of ' 320 

Contingency  on  which  remainder  may  depend 323 

How  defeated 322 

Destruction  of — 

By  destruction  of  particular  estate 322 

By  expiration  of  particular  estate 322 

Alternate   remainders    , 326 

At  common-law  contingent,  remainder  not  an  estate 326 

Rule  in  Shelley's  case 327 

REMEDIES— 

For  -wastes-See  Waste. 

REMOTENESS— 

Rule  against — See  Perpetuities. 

RENT— See  Landlord  and  Tenant- 
Definition   194 

When    payable 196 

Where    payable 197 

To  whom  payable 198-200 

On  what  ground  payment  may  be  refused 202 

Effect  of  fraud  and  concealment  of  rent 204^210 

Defenses  to  actions  for 201-204 

Apportionment  of 199-200 

When  descendable  to  heir,  liability  of  co-tenant  for 199 

Tenant  at  sufferance  not  liable  for 233 

Extinguished  by  eviction 217 

Extinguished  by  failure  of  consideration 210 

Destruction  of  building,  effect  on 211 

Failure  of  Landlord  to  repair,  effect  on 212 

When  set-off  and  recoupment  may  be  pleaded 213 

REPAIRS— 

Tenant  for  life  may  take  estovers  for 128 

Of  party  walls — See  Party  Walls. 
Of  easements — See  Easements. 

REQUISITES  OF  DEEDS— See  Deeds. 

RESERVATIONS— See  Deed. 

RESTRAINTS  ON  ALIENATION— See  Alienation. 


572  INDEX. 

RESULTING  TRUSTS— See  Trusts. 

REVERSION— I 

Defined  303 

Nature  and  incidents  of 303 

Is  a  present  vested  estate. . .  f 305 

May  be  conveyed  and  mortgaged 305 

May  be  devised 305 

Rights  of  reversioner 306 

REVERTER— 

Possibility  of 306 

REVOCATION— 

Of  wills,  how  effected — See  Devise. 
Of  license — See  License. 
Powers  of  — See  Power. 

RIGHT  OF  ENTRY— 

To  defeat  estate  on  condition — See  Estates  upon  Condition. 

RIGHTS  OF  WAY— 

By  necessity 411 

Use  of   412 

Location    412 

See  Highways. 

RULE  AGAINST  PERPETUITIES 336 

See  Perpetuities. 

RULE  IN  SHELLEY'S  CASE 327 

RULES— 

Of  descent  as — See  Descent. 

RURAL—  | 

Homestead — See  Homestead. 

SEAL— 

When  necessary  for  deed,  or  lease 160 

SEISIN— 

Defined     445 

SELECTION  OF  HOMESTEAD— See  Homestead. 


INDEX.  573 

SERVIENT  ESTATE— See  Easements. 

SEVERALTY— 

Estates  in 338 

SEVERANCE— 

May  make  realty,  personalty  24 

SHIFTING  USES— 

Distinguished  from  remainder    332 

SOUND  MIND— 

Wills    507 

SPECIFIC  PERFORMANCE— 

Of  land  contracts 513 

Conveyance  of  title  by  513 

SPRINGING  USES  332 

STATUTE  OF  FRAUDS— 

Provisions  of,  as  to  purchase  and  sale  of  lands 18,    510 

Sale  of  growing  trees  within   18,  21 

Sale  of  trees  to  be  severed  not  within 20 

SUBJACENT  SUPPORT— See  Easements. 

SUBROGATION— 

Of  insurer  to  rights  of  mortgagee. 
See  Mortgages. 

SUBSEQUENT— 

See  Condition  Precedent  and  Subsequent. 

SUBTERRANEAN  WATERS— 

Easements  in — See  Water. 

i 

SUFFERANCE— 

See  Tenancy  at  Sufferance. 

SUPPORT— See  Easement. 

Lateral  and  subjacent — See  Easements. 

SURFACE  WATERS— 

Easements  in — See  Water. 


574  INDEX. 

SURVIVORSHIP— 

Doctrine  of,  in  joint  tenancies — See  Joint  Tenancy. 
In  estates  in  entirety — See  Entireties. 

TACKING— 

Of  adverse  possession. 
See  Adverse  Possession. 

TAX   TITLES— 

Nature  and  characteristics  of 478 

Purchase  of  by  joint-tenant 350 

TAXES— 

Duty  of  tenant  for  life  to  pay 129 

TENANCIES— 

«   At  will  defined 230 

How  created  230-232 

Incidents    233 

Termination    234 

From  year  to  year 235 

Incidents    236 

At  sufferance  238 

Creation    228-229 

Incidents    ' 229 

Termination 230 

In  common  defined. 

By  entireties 342 

See  Entirety. 

TENANCY  IN  COMMON— See  Partition. 

When  it  arises 354 

Nature  and  Incidents  of 355 

See  Joint  Estates 355 

TENANT— 

See  Landlord  and  Tenant. 

Under  feudal  system — See  Feudal  System. 

Tenant  at  will — See  Tenancies. 

TENANTS  IN  COMMON— See  Estates. 

TENURE— Feudal    .  42 


INDEX.  575 

TIMBER  TREES  131 

TITLE— 

Defined  and  classified ." 422 

By  what  law  determined. , 423 

Sources  and  classes  of,  how  acquired  by  national  government    423 

By  descent — See  Deceased 425 

By   purchase 425 

Requisites  of  deeds— See  Deeds. 

By  estoppel — See  Estoppel.  f 

By  adverse  possession — See  Adverse  Possession. 

By  accretion — See  Accretion. 

By  alluvion — See  Alluvion. 

By  devise — See  Devise. 

By  descent — See  Descent. 

By  judicial  process — See  Judicial  Sales. 

Tax  titles— See  Tax  Titles. 

By  Eminent  domain — See  Eminent  Domain. 

By  descent — See  Descent. 

By  execution — See  Executions. 

TREES  AND  HERBAGE— See  Growing  Trees. 

Annexed  to  the  soil,  are  land 15 

Overhanging  rights  as  to 14,  15 

When  becomes  personal  property  on  dividing  line 16 

TRUSTS— 

Are  uses  not  executed 362 

Description  of  trust  estate,  where  exist 362 

Trustee  and  cestui  que  trust,  who  are,  essentials  of 363 

Jurisdiction  of,  in  equity 363 

Modes  of  creating,  statutes 365 

Parties  to  a  trust S73 

Cestui  que  trust  373 

Trustee    373 

Incidents  to  estate  of  trustee 373 

Actual  and  passive  365 

Executed  and  executory  365 

Express 366 

Creation  of. 

Implied   367 

Charitable,  defined  374 


576  INDEX. 

TRUSTS— 

Resulting  367 

Constructive   367 

Fraud  an  essential  element  of 370 

Raised  by  titles  procured  by  fraud 371 

Not  as  against  bona  fide  holder 372 

UNDUE  INFLUENCE— 

Effect  on  wills 505 

« 

UNITY— 

Of  interest  in  joint  tenancy — See  Joint  Estates. 

UNSOUND  MIND— 

Persons  of,  power  to  hold  and  convey  realty 534 

URBAN  HOMESTEAD— See  Homestead. 
USE— See  Trust. 

VENDEE'S  LIEN— 

An  equitable  mortgage 261 

VENDOR'S  LIEN— 

An  equitable  mortgage   258 

For  unpaid  purchase-money,  nature  of 258-259 

When  it  attaches   260 

Bona  fide  purchaser  protected  against 259-260 

How  waived  260 

VESTED  ESTATES 311 

VISIBLE   POSSESSION— 

Necessary  in  acquiring  title  by  adverse  possession. 
See  Adverse  Possession. 

WARRANTY— 

Covenant  of   494 

Estoppel  by — See  Estoppel. 

WARRANTY  DEED— 

Form  and  operation  of — See  Deed. 


INDEX.  577 

WASTE— 

Definition     131 

What  constitutes. 

Voluntary  or  permissive 130 

Cutting  trees,  etc 131 

In  buildings   134 

In  respect  to  mines,  etc 133 

Improper  cultivation  of  land 133 

Remedy  in  equity  in  cases  of 135 

WATER— 

Nature  of  property  in 10 

Natural  water  courses 406-407 

Artificial  water  courses 410 

Percolating  and  surface  water 410 

WAY— See  "Easement." 

Rights  of— See  Rights  of  Way,  Highways. 

WEAKNESS  OF  MIND— 

As  affecting  capacity  to  <hold  and  convey  realty 534 

WHOLE  BLOOD— 

Descent  to — See  Descent. 

WILLS — See  Devise. 
WITNESSES— See  Deeds. 

WOMEN— 

See  Married  Women. 

WORDS  OF  LIMITATION— See  Limitation. 

WRITING— 

What  requisite  in  deeds — See  Deeds. 


TABLE  OF  CASES  CITED. 


Ableman  vs.  Booth 

Abrahams  vs.  Krautler 

Abrams  vs.  Watson 

Adams  vs.  Hubbard 

Adams  vs.  Briggs  Iron  Co 

Admr.  vs.  Perkins 

Aetna  Mills  vs.  Waltham 

Ahern  vs.  White 

Alden  vs.  St.  Peter's  Parish 

Alemany  vs.  Daly 

Allen  vs.  Craft 

Allen  vs.  Jaquish 

Allen  vs.  Loring 

Allen  vs.  Mooney 

Alexander  vs.  Alexander 

Alexander  vs.  Alexander 

Alexander  vs.  Alexander 

Alpine  Twp.  School  District  vs. 

Batsche  

Alsup  vs.  Banks 

Arabs  vs.  Hill 

American  Freehold  Land  Mtg. 

Co.  vs.  Sewell 

Am.  Sav.  &  Loan  Assn.  vs.  Burg- 

hardt  

Amos  vs.  Amos 

Amphlett  vs.  Hibbard 

Anderson  rs.  Bell 

Anderson  vs.  Dickie 

Anderson  vs.  Miller 

Anderson  vs.  Henderson 

Anderson  vs.  Post 

Anthony  vs.  R.  R.  Co 

Ann  Arbor  Sav.  Bank  vs.  Webb. 

Aguirre  vs.  Alexander 

Armstrong  vs.  Douglass 

Armstrong  vs.  Douglass 

Arnold  vs.  Waltz 

Arnold  vs.  Green 

Arnold  vs.  Green 

Ashcroft  vs.  E.  R.  Co 

Atkinson  vs.  Miller 

Atkinson  vs.  Miller 

Atkinson  vs.  Miller 

Atlanta  Mills  vs.  Mason 


476 
406 
154 
469 
9 

240 

408 

290 

337 

240 

329 

160 

260 

37 

64 

65 

111 

147 

226 
38 


124 
313 
124 
435 
154 
215 
411 
479 
170 
282 
355 
334 
336 
109 
281 
282 
387 
252 
257 
268 


Atwater  vs.  Manchester  Savings 

Bank   289 

Atwood   vs.    Bearnes 292 

Aurora  vs.  Fox 401 

Austen  vs.   Sawyer 3 

Aylward    vs.    O'Brien 23 

Babb   vs.    Perley 59 

Babbitt  vs.  Babbitt 71 

Bacon   vs.    Bowdoin 178 

Bagnall  vs.  ^Davies 391 

Bailey's   Appeal 371 

Bailey    vs.    Bailey 427 

Bailey  vs.   Sanger 318 

Baker   vs.    Stewart 350 

Baker   vs.    Oakwood 62 

Baker   vs.    Oakwood 456 

Baker   vs.    Baker 74 

Baker   vs.    Stewart 344 

Baker  vs.    Swan 447 

Ballard   vs.    Demmon 393 

Ball  vs.   Setzer 300 

Bateman   vs.    Maddox 235 

Baldwin  vs.   Young 31 

Baltimore   vs.    Appold 407 

Bank   vs.    Barry 371 

Bank   vs.    Lyon 125 

Bank   vs.    Rice 198 

Banks   vs.    Sharp 164 

Banks  vs.  Button 67 

Banorgee  vs.    Hovey 162 

Barber  vs.   Root 350 

Barker    vs.    Barker 154 

Barnes  vs.   Boardman 287 

Barnes  vs.   Boardman 356 

Barnes'  Appeal 376 

Barnett    vs.    Powers 3 

Bartholomew  vs.  West 118 

Barry   vs.    Edlavitch 400 

Barry  vs.   Shelby 57 

Bass  vs.    Roanoke  Nav.  Co 306 

Batterman  vs.   Albright 17 

Bates  vs.   Shreader 305 

Bates   vs.    Brown 432 

Batty  vs.    Snock 288 

Bazemore   vs.    Davis 359 


578 


TABLES   OF   CASES   CITED. 


579 


Beard  vs.  Lofton 427 

Bearse  vs.   Perry 409 

Becar   vs.    Flues 173 

Bertram    vs.    Curtis 405 

Bell   vs.    Pelt 260 

Bellas   vs.    Hays 164 

Belslay  vs.    Engel 329 

Bente   vs.    Lange 115 

Benton  County  vs.   Czarlinsky...  265 

Birnie    vs.    Main 295 

Bertie    vs.    Flagg 210 

Bethlehem  vs.  Annis ?72 

Bicknell  vs.  Comstock 456 

Bigley  vs.  Watson 62 

Bigley  vs.  Watson 319 

Billing  vs.   Taylor 133 

Billings  vs.   Canney 177 

Binkley    vs.    Forkner 26 

Bird   vs.    Decker 267 

Blackmore    vs.    Boardman 185 

Blancke  vs.   Rogers 28 

Bliss   vs.    Johnson 446 

Blood   vs.    Goodrich 162 

Blum   vs.    Bush 272 

Board  of  Health  vs.  Van  Hoesen  473 

Board  of  Health  vs.  Van  Hoesen  474 

Board  of  Health  vs.  Van  Hoesen  475 

Bohannon    vs.    Combs 80 

Bonetti  vs.   Treat 196 

Boone  vs.    Clark 243 

Boone  vs.    Clark 268 

Bolles  vs.    State  Trust  Co 348 

Bopp   vs.    Fox 78 

Borland  vs.  Marshall 62 

Borland  vs.  Marshall 62 

Bosquett  vs.   Hall 110 

Boston  Safe  Deposit  &  I.  Co.  vs. 

Coffin    509 

Boswell  vs.  Goodwin 271 

Bowe  vs.   Hunking 208 

Bowers  vs.   Johnson 277 

Bowles  vs.   Hoard 115 

Bowling  vs.  Burton 388 

Bowman  vs.   Bradley 148 

Boyd  vs.   Harrison 94 

Boyer  vs.    Chandler 294 

Boyer  vs.    State 415 

Boynton  vs.  Langley 411 

Boynton  vs.   Sawyer 78 

Brackett   vs.    Goddard 25 

Bradley  vs.    Baily 129 

Bradley  vs.   Bradley 128 

Brainerd   vs.    Brainerd 253 

Bramberry    Estate    350 

Brandon  vs.   Damson 93 

Brant  vs.  Vincent...                        .  235 


Brantley  vs.  Wood 256 

Brattle  Sq.  Church  vs.  Grant....  324 

Brattle  Sq.  Church  vs.  Grant 336 

Brattle  Sq.  Church  vs.  Grant....  336 

Breeding  vs.  Davis 67 

Breitenbach  vs.  Trowbridge 417 

Brewer  vs.  Dyer 198 

Briggs  vs.  Partridge 164 

Brinley  vs.  Mann 164 

Brown  vs.  Baldwin 36 

Brown  vs.  Brown 110 

Brown  vs.  Wilt 110 

Brown  vs.  Coon 124 

Brown  vs.  N.  Y.  C.  R.  R 178 

Brown  vs.  Baraboo :..  345 

Brown  vs.  Baraboo 345 

Brown  vs.  Powell 154 

Browning's  Petitions 328 

Brownson  vs.  Chapman 23 

Brook  vs.  Jenney 149 

Brooke  vs.  Struthers 280 

Brooke  vs.  Struthers 292 

Brookville  &  M.  Hydraulic  Co. 

vs.  Butler 13 

Brumfleld  vs.  Carson 23 

Bryan  vs.  Brasins 264 

Brant  vs.  Vincent 232 

Bubier  vs.  Roberts 98 

Buckingham  ws.  Buckingham....  107 

Buckley  vs.  Devlne 191 

Buckworth  vs.  Thirkell 52 

Buell  vs.  Cook 178 

Buffalo  Catholic  Institute  vs. 

Bitter  104 

Buhl  vs.  Kenyon 139 

Bunce  vs.  Bidwell 464 

Bunting  vs.  Speek 319 

Burbank  vs.  Fay 39?> 

Burdens  vs.  Thayer 306 

Burgess  vs.  Muldoon 65 

Burke  vs.  Smith 399 

Burns  vs.  Gallagher 389 

Burns  vs.  Lynde 189 

Burris  vs.  Page 69 

Burt  vs.  Merchants'  Ins.  Co 327 

Buss  vs.  Dyer 389 

Bush  vs.  Calis 185 

Bush  vs.  Bradley 62 

Buttar  vs.  Rosenblath 348 

Butler  vs.  Bertrand 176 

Butler  vs.  Fitzgerald 88 

Butler  vs.  Fitzgerald 93 

Buxton  vs.  Dearborn 116 

Byers  vs.  Johnston Ill 

Byers  vs.  Byers 357 

Byington  vs.  Simpson 170 


580 


TABLES   OF   OASES   CITED. 


Byrnes  vs.  Stillwell 313 

Cadman  vs.  Peter 264 

Cadwalader  vs.  Bailey 383 

Call  vs.  Wells 90 

Caldwell  vs.  Aslop 17 

Cadwalader  vs.  Bailey 386 

Calhonn  vs.  Williams 109 

Campau  vs.  Chene 239 

Campau  vs.  Campau 303 

Campau  vs.  Campau 354 

Campbell  vs.  O'Neill 38 

Campbell  vs.  Foster  Home  Assn.  379 

Campbell  vs.  Lewis 185 

Campbell  vs.  Lafferty 168 

Campbell  vs.  Race 419 

Campbell  vs.  Carson 49 

Campbell  vs.  Talbot 409 

Campbell  vs.  Mesier 403 

Campbell  vs.  Adair 104 

Campbell  vs.  Mason 314 

Cannaughton  vs.  Sands 109 

Cannon  vs.  Boyd 388 

Capps  vs.  Leachman 470 

Caraufle  vs.  Cooley 17 

Carpenter  vs.  Jones 234 

Carpenter  vs.  Providence  Wash. 

Ins  Co 270 

Carter  vs.  Chevallier 444 

Caruthers  vs.  Humphrey 286 

Cass  County  Bank  vs.  Weber...  112 

Case  vs.  Erwin 291 

Catholic  Benefit  Ass'n  vs.  Fir- 

nane  507 

Re  Cawley's  Appeal 504 

Cawthon  vs.  Coppedge 440 

Cazier  vs.  Hinchey 92 

Center  vs.  Planter,  &c.,  Bank...  171 

Chapel  vs.  Hull 133 

Chappell  vs.  New  York  R.  Co...  388 

Chapin  vs.  Crew ?14 

Chapman  vs.  Schroeder 97 

Chambers  vs.  Ross 174 

Chamberlin  vs.  Meeder 285 

Chandler  vs.  Cheney 348 

Chandler  vs.  Cheney 349 

Charles  vs.  Charles 65 

Chase  vs.  Silverstone 410 

Chase  vs.  Silverstone 410 

Chase  vs.  Tacoma  Box  Co 33 

Cheney  vs.  Newberry  &  Co 177 

Cheeseborough  vs.  Green 403 

Cheeseborough  vs.  Pingree 168 

Chicago  &  I.  R.  Co.  vs.  Hall....  419 

Chilcott  vs.  Hart 312 

Chilcott  vs.  Hart...  .  314 


Chilcott  vs.  Hart 325 

Chippewa  Lumber  Co.  vs.  Trem- 

per  244 

Chitty  vs.  Chitty 113 

Cihak  vs.  Klekr 389 

Claflin  vs.  Boston  &  E.  R.  Co...  388 

Clapp  vs.  Emory 371 

Clarke  vs.  Cordis 427 

Clark  vs.  Gilbert 451 

Clark  vs.  Clough 287 

Clark  vs.  Allen 190 

Clarkson  vs.  Clarkson 314 

Classen  vs.  Classen 61 

Clason  vs.  Baily 169 

Clawson  vs.  McCune 295 

Clay  vs.  Field 353 

Clement  vs.  Wheeler 132 

Clift  vs.  Clift 80 

Clowes  vs.  Dickinson 301 

Coogler  vs.  Rogers 355 

Coal  Co.  vs.  Peers 161 

Coal  Co.  vs.  Peers 163 

Coal  Co.  vs.  Peers 420 

Coari  vs.  Olsen 172 

Cockson  vs.  Cook 185 

Cogswell  vs.  Tibbetts 92 

Cohn  vs.  Norton 142 

Collamer  vs.  Kelley 182 

Colby  vs.  Duncan 314 

Collins  vs.  Lewis 217 

Coll  vs.  Lake  Co 50 

Colorado  L.  &  I.  Co.  vs.  Grand 

Canal  Co 457 

Columbia  Bank  vs.  Jacobs 292 

Commonwealth  vs.  Munson 61 

Conard  vs.  Saginaw  Mining  Co..  32 

Concord  Mfg.  Co.  vs.  Robertson.  410 

Conger  vs.  Lowe 328 

Conklin  vs.  Foster 118 

Conner  vs.  Shepherd 83 

Conn.  Mut.  Life  vs.  Stinson 266 

Conroy  vs.  Sullivan 121 

Consolidated  Coal  Co.  vs.  Peers..  184 

Cooley  vs.  Golden 466 

Cooley  vs.  Golden 466 

Cooley  vs.  Golden 467 

Cook  vs.  Bartholomew 272 

Cook  vs.  Hammond 305 

Cooke  vs.  Cooper 264 

Cook  vs.  Couch 98 

Cook  vs.  Parham 295 

Cook  vs.  Cook 504 

Cook  vs.  Patrick 482 

Cook  vs.  Whiting 24 

Cook  vs.  Higley 124 


TABLES   OF   CASES   CITED. 


581 


Cook  vs.  Blsbee 307 

Cookson  vs.  Richardson 371 

Coombs  vs.  Anderson 54 

Cooper  vs.  Rankin 162 

Corey  vs.  Schuster 113 

Corinth  vs.  Emery 341 

Corinth  vs.  Emery 343 

Cornell  vs.  Hall 256 

Cornett  vs.  Puddy 392 

Corrigan  vs.  Chicago 210 

Costello  vs.  Edson 450 

Cowan  vs.  Murch 259 

Cowan  vs.  Murch 260 

Cowell  vs.  Craig 256 

Cowell  vs.  Springs 214 

Cowell  vs.  Springs  Co 247 

Cox  vs.  Ward 450 

Corey  vs.  Springer 312 

Corey  vs.  Springer 316 

Craig  vs.  Summers 181 

Crane  vs.  Buchanan 255 

Cramer  vs.  Clow 446 

Crane  vs.  Reeder 530 

Crawley  vs.  Timberlake 132 

Crippen  vs.  Morrison 31 

Crocker  vs.  Smith 504 

Crouch  vs.  Puryear 133 

Crowell  vs.  R.  R.  Co 154 

Croxall  vs.  Shererd 315 

Cruie  vs.  Tifts 18 

Cucullu  vs.  Brakenridge  479 

Curling  vs.  Mills 177 

Curtis  vs.  Cutler 277 

Curtiss  vs.  Hoyt 415 

Curtis  vs.  La  Grande  Hydraulic 

Water  Co 392 

Curtis  vs.  La  Grande  Hydraulic 

Company  393 

Curtis  vs.  La  Grande  Hydraulic 

Company  419 

Gushing  vs.  Thompson 269 

Cutler  vs.  Currier 358 

Cutler  vs.  Hamlen 209 

Daggett  vs.  Rankin 257 

Dole  vs.  Keyes 313 

Darden  vs.  Cowper 133 

Darling  vs.  Butler 483 

Darnell  vs.  Barton 313 

Davenport  vs.  Shauts 30 

Davidson  vs.  Bates 319 

Davis  vs.  Clark 132 

Davis  vs.  Shields 169 

Dawson  vs.  Coffman 131 

Day  vs.  Walden 395 

Doying  vs.  Chesetarough 256 


Debow  vs.  Colfax 129 

Deerfleld  vs.   Railroad  Co 414 

Deere   vs.   Chapman 118 

Deffeback  vs.  Hawke 447 

Defreese    vs.    Lake 325 

Defreese    vs.    Lake 330 

Deford  vs.    Painter 113 

Delane   vs.   Montague 173 

Delashman  vs.   Berry 177 

Dell  vs.    Gardner 174 

DeLong  vs.   Baldwin 463 

Demarest  vs.  Willard 185 

Deming  vs.   Bullitt 164 

Dendy  vs.  Gamble HO 

Despain  vs.  Wagner 125 

Desot   vs.    Ross 283 

Detroit  vs.  D.  &  M.  Railroad....  415 

Deville  vs.   Widoe 114 

Dew  vs.  Johnson 160 

Dexter  vs.   Manley 218 

Contra.  Dickason  vs.  Fisher 260 

Dickinson   vs.    Goodspeed 154 

Dill  vs.   Camden  Board   of  Edu- 
cation    395 

Disbrow  vs.  Johe's  Harr 172 

Dodg-e  vs.   Kennedy 458 

Dodge  vs.   Kennedy 459 

Doe    vs.    Ries 178 

Doebler's    Appeal 329 

Doss  vs.  Ditmars 277 

Dowling  vs.    Sallotte 344 

Dowling  vs.    Sallotte 344 

Dowling  vs.   Henning 404 

Doyle  vs.  Union  Pacific  Ry.  Co..  208 

Drake  vs.   Wells 21 

Drake  vs.   Wells 21 

Drake  vs.  Lady  Ensley  Coal  Co..  408 

Drew   vs.    Morrill 267 

Dright  vs,  Lutler 174 

Drury  vs.   Foster 190 

Dryden  vs.  Newman 355 

Dudley   vs.    Dudley 84 

Duke   vs.    State 265 

Dudley  vs.   Dufley 84 

Dumont  vs.   Kellogg 497 

Dumont  vs.   Kellogg 409 

Dunn  vs.  Portsmouth  Sav.  Bank  92 

Duncan  vs.   Miller 271 

Duncan  vs.    Terre   Haute 65 

Dunlap  vs.   Bullard 182 

Durando  vs.  Durando 74 

Durando  vs.  Durando 74 

Durham  vs.  Augier 97 

Dutton  vs.  Ives 282 

Duval   vs.    Craig 164 


582 


TABLES   OF   CASES   CITED. 


Dwight   vs.    Cutler 175 

Dwight   vs.    Cutler 176 

East     Tennessee     R.    R.    Co.    vs. 

Telford's    Exrs    477 

Eaton  vs.  Boston,  C.  &  M.  R,  R.  1 

Eaton  vs.  Boston,  C.  &  M.  R.  R.  6 

Eaves  vs.   Ester 26 

Ebey  vs.  Adams 314 

Eckerson  vs.  Crippen 393 

Eckerson  vs.   Crippen 421 

Edelin  vs.  Sanders 189 

Edmison  vs.  Lowry 192 

Edwardsville  R.  R.  Co.  vs.  Saw- 
yer      48 

Eichengreen  vs.   Appel 228 

Ellis  vs.  Leek 296 

Ellis  vs.   Welch 218 

Elkinton   vs.    Brick E06 

Elyton  Land  Co.  vs.   South  Ala- 
bama R.   Co 241 

Emerson  vs.   Mooney 49 

Emison  vs.   Whittlesey 313 

Emison  vs.  Whittlesey 321 

Endsley  vs.  Strock 164 

Engelbert  vs.   Pritchett 533 

English  vs.    Carney 277 

Enos  vs.   Sanger 275 

Eowell  vs.   Doyle 14 

Contra.    Erck   vs.    Church 454 

Equitable  Life  Ass.  Co.  vs.  Bost- 

wick  275 

Espy  vs.    Comer 79 

Estate  of  Wixon 109 

Everett   vs.    Edwards 403 

Everett   vs.   Edwards 403 

Everett   vs.    Edwards 406 

Everts  vs.  Beach 358 

Everitt  vs.  Everitt 75 

Ewing-  vs.  Shannahan 49 

Excelsior  Fire  Ins.  Co.  vs.  Royal 

Ins.    Co 269 

Parrand  vs.  Marshall 400 

Farmers'  &  Mechanics'  Bank  vs. 

Bronson    266 

Farnam  vs.  Farnam 315 

Farnam  vs.   Farnam 321 

Fay  vs.    Muzzey 22 

Fay  vs.    Prentice 149 

Fak  vs.  Oats 179 

Fennell    vs.    Guffey 198 

Furgeson   vs.    Jones 437 

Furgeson   vs.   Jones 437 

Furgeson    vs.    Jones 469 

Ferris   vs.    Wilcox 251 

Fenton    vs.    Miller 450 

Field  vs.   Leiter 406 


Field  vs.   Stagg 190 

Finlay son  vs.  Peterson 299 

Finely  vs.   Dietrich 107 

First     Universalist     Society     vs. 

Adams    246 

First      Universalist      Society      of 

North    Adams    vs.    Boland 247 

First  Universalist  Society  vs.  Bo- 
land   325 

First  Universalist  Society  vs.  Bo- 
land  336 

Fisher  vs.  Fair 380 

Fisher  vs.   Fair 383 

Fisher  vs.    Fair 385 

Fisher   vs.   Fair 387 

Fisher   vs.    Provin 350 

Fisher  vs.  Salmons 164 

Fla  herty  vs.  Moran 399 

Flanders  vs.   Lamphear 273 

Fleming  vs.  Kerr 355 

Fletcher  vs.  Herring 23 

Fletcher  vs.   Carpenter 277 

Fluker  vs.   Georgia  R.    &    Bank- 
ing  Co 419 

Fluker  vs.   Georgia   R.    &   Bank- 
ing   Co 420 

Flynn  vs.  Detroit 442 

Flynn  vs.  Flynn 95 

Foley  vs.    Wyeth 400 

Fontaine  vs.  Boatmen's  Savings 

Institution   72 

Fontaine  vs.  Boatman 72 

Foote   vs.    Clark 458 

Forest   Oil   Co.'s   Appeal 285 

Foster  vs.   Marshall 59 

Foster  vs.  Mapes 218 

Foulke  vs.  Bond 455 

Foulke  vs.  Bond 455 

Fowler  vs.  Black 328 

Fowler  vs.  Shearer 164 

Fox  vs.  Windes 458 

Franklin  vs.   Coffee 104 

Franklin  vs.   Coffee 114 

Freer  vs.   Stotenbur 80 

Frame  vs.   Sliter 258 

Free  vs.  Beatley 79 

French    vs.     Marstin 412 

Froud    vs.     Merritt 268 

Frost   vs.    Earnest 218 

Fuller  vs.   Brownell 38 

Ex  Parte   Fuller 507 

Fullman  vs.  West  Brookfleld 164 

Fuller  vs  Shedd 466 

Fulmer  vs.    Williams 407 

Fulper   vs.    Fulper 345 

Fulton  vs.   Mehrenfeld 416 


TABLES   OF   CASES   CITED. 


583 


Funk  vs.  Brigaldi 26 

Funk  vs.   Brigaldi 28 

Gafford  vs.  Strouse 265 

Gage  vs.  Hampton 456 

Gage  vs.   Gage 359 

Gaines     vs.     Green     Pond     Iron 

Mining    Co 133 

Gallagher    vs.    Keller 114 

Galbraith   vs.    Tracy 352 

Galbraith    vs.    Tracy 353 

Galbraith   vs.    Lunsford 463 

Galloway   vs.    Bonestel 391 

Gardner,  Decker  &  Co.  vs.  Moore    258 

Gardner  vs.   Gardner 162 

Gardner  vs.   Keteltas 218 

Garrett  vs.   Jackson 392 

Gassert  vs.  Bogk 256 

Gaskell   vs.    Viquesney 267 

Gates   vs.    Salmon 357 

Gaugmere's  Estate 101 

Gayle  vs.    Johnston-. 359 

Gazzolo   vs.    Chambers 218 

George  vs.   Putney 218 

Contra.  Gerber  vs.  Grabel 398 

Gessner  vs.   Palmateer 258 

Geynne  vs.  Cincinnati 96 

Gillespie   vs.    Worford 66 

Gillham  vs.  Madison  Co.  R.  Co..    411 

Gilmer  vs.  Lime  Point 475 

Gilmore  vs.    Driscoll 401 

Gilmore  vs.    Driscoll 401 

Godfrey   vs.    Humphrey 49 

Godfrey  vs.   White 354 

Goebel  vs.    Hough 154 

Goff  vs.  Anderson 63 

Gold  vs.   Ryan 94 

Goldthwaite  vs.  Janney 352 

Gonel    vs.    Thompson 175 

Goodard  vs.  Winchell 12 

Gooding  vs.   Riley 28 

Goodell  vs.  Boardman 112 

Goodrich  vs.   Burbank 387 

Goodwin   vs.    Goodwi n 69 

Gordon  vs.  George 185 

Gore  vs.  Townsend 84 

Goss  vs.   Froman 92 

Goss  vs.   Froman 92 

Granger  vs.   Granger 241 

Granger  vs.  Granger 330 

Grant    vs.    K'uglar 408 

Grant  vs.   Chase 394 

Grant   vs.    Duane 288 

Graves   vs.    Smith 405 

Gray  vs.   Holmes 437 

Graydon   vs.    Graydon 244 

Grayson  vs.  Tyler 327 


Greeley  vs.   Scott 116 

Green  vs.   Canaan 415 

Green  vs.  Kellum 466 

Green  vs.  Hewitt 316 

Greene  vs.  Nunnemacher 408 

Greene  vs.  Greene 70 

Greene    vs.    Reynolds 70 

Greenough  vs.  Twiner 90 

Greenwell   vs.    Heritage 283 

Greenwood  vs.  Madox 108 

Gregley   vs.    Jackson 436 

Gregory  vs.  Bush 411 

Griffin  vs.  Knisely 178 

Griffin  vs.  Bixley 16 

Griffin  vs.  Bixley 1 

Grenier   vs.    Klein 96 

Grubb  vs.   Grubb 385 

Gurney    vs.    Minneapolis    Eleva- 
tor   Co 477 

Guest  vs.   Reynolds 399 

Haeussler  vs.  Missouri  Iron  Co.  243 

Hafer  vs.   Hafer 74 

Hogeboom  vs.  Hall 241 

Hageman  vs.   Hageman 329 

Hagerty  vs.   Lee 398 

Haggerty  vs.  Wagner 96 

Hahn   vs.    Baker  Lodge,    etc 396 

Hale  vs.  Hale 480 

Hall  vs.  Stephens 344 

Hall  vs.   McDuff 258 

Hall  vs.  McLeod 416 

Hall  vs.   Wallace 233 

Hall  vs.  Westcott 266 

Hallett  vs.   Wylie IT/ 

Hallet  vs.   Parker 73 

Hamel  vs.    Corbin 270 

Hamilton  vs.    Farrar 394 

Hammerton  vs.   Stead 175 

Hancock  vs.  Fleming 282 

Hardage  vs.   Stroope 330 

Handforth  vs.  Jackson 36 

Hanford   vs.    McMaio 162 

Haughery  vs.  Lee 178 

Hanlon  vs.  Doherty 282 

Hanaw  vs.   Bailey 212 

Harber  vs.   Evans 403 

Harber  vs.  Evans 403 

Harber  vs.  Evans 405 

Harbester's   Estate 329 

Harding  vs.  Jasper 415 

Harding  vs.  Jasper 416 

Harding  vs.  Alden 94 

Hare   vs.    Murphy 275 

Harriman   vs.   Gray 89 

Harriman  vs.   Gray 89 

Harris   vs.    Frink 233 


584 


TABLES   OF   CASES   CITED. 


Harris  vs.   Frink 234 

Harrison  vs.   Farmer 178 

Harlan  vs.  Emery 174 

Harriot  vs.  Harriot 69 

Harper  vs.   Ely 292 

Harrer  vs.  Wallner 350 

Hart  vs.  McCallum 96 

Hart  vs.  Chalker 270 

Hart    vs.    Burch 84 

Hart  vs.   Burch 85 

Hart  vs.   Burch 88 

Hartwell  vs.   Armstrong 475 

Harvey  vs.   Briggs 229 

Hasenritter  vs.  Kirchhoffer 458 

Haskett   vs.    Maxey 458 

Haslem  vs.  Lockwood 23 

Hastings  vs.  Dickinson 100 

Hasty  vs.  Wheeler 134 

Hatcher  vs.  Buford 84 

Hatcher  vs.  Buford *94 

Hatfield  vs.  Sueden 67 

Haven  vs.   Wakefleld 177 

Hawkins  vs.  Hersey 31 

Hayard  vs.  Kinney 240 

Hayes  vs.  Livingston 460 

Hayden  vs.  Long 408 

Hayner  vs.  Smith 218 

Huyser  vs.   Chase 232 

Hazen  vs.  Barnett 357 

Heard  vs.   Fairbanks 19 

Heartt  \s.  Kruger 405 

Heath  vs.  Waters 353 

•  Heflin  vs.   Bingham 21 

Helms  vs.  Elliott 437 

Hemingway  vs.   Scales 344 

Hemitt  vs.    Cox 78 

Hendrix  vs.   State 420 

Hendry  vs.  Benlisa 469 

Hennessy  vs.  Patterson 327 

Henry  vs.  Newburyport 408 

Herrick  vs.   Graves 113 

Herrick  vs.   Graves 115 

Herman  vs.  Roberts 3% 

Herman   vs.  Clark 289 

Herman  vs.    Clark 292 

Herman  vs.  Roberts 397 

Herron  vs.  Herron 17 

Hettinger  vs.  Ames 13 

Hickey  vs.   M.   C.   R.   R 15 

Hickey  vs.   M.   C.   R.   R 15 

Hicks  vs.   Downing 181 

Hight  vs.  Hall 66 

Highstone  vs.  Burdette 456 

Higgins  vs.  Kendall 259 

Higgins   vs.   Senior 170 

Hill   vs.    Cutting 384 


Hiles  vs.   Fisher 346 

Hiles   vs.    Fisher 347 

Hiles   vs.    Fisher 347 

Hiles   vs.    Fisher 348 

Hiles   vs.    Fisher 349 

Hiles  vs.    Fisher 349 

Hilsendegen  vs.    Scheich 234 

Hinclifee  vs.  Shea 90 

Hines  vs.   Willcox 209 

Hirth  vs.   Graham 3 

Hirth  vs.  Graham 21 

Hirth  vs.  Graham 19 

Hiscock  vs.   Norton 259 

Kitchens  vs.  Shaller 384 

Hitz  vs.  Metropolitan  Bank 65 

Hoag  vs.  Place 392 

Hockamp  vs.   Hagaman 94 

H&,ckett  vs.  Watts 258 

Hodgkins  vs.  Farrington 155 

Hodgkins   vs.   Farrington 421 

Hoffman  vs.  Kuhn 406 

Hoffman  vs.  Armstrong 15 

Hogg  vs.  Heusley 87 

Hogg  vs.  Water  Co 408 

Hogan  vs.   Manners 113 

Hogsett  vs.  Ellis 176 

Hoitt  vs.  Webb 112 

Holla  way  vs.  Hollaway 109 

Holden  vs.  Dunn 77 

Holden  vs.   Dunn 78 

Holden  vs.   Dunn 82 

Holden  vs.   Lake   Co 408 

Holden  vs.  Garrett 292 

Hollenbeck  vs.  McDonald 413 

Hollcnbeck  vs.  McDonald 413 

Holley  vs.   Glover 96 

Hollins  vs.  Demorest 397 

Holdridge  vs.    Gillespie 288 

Holmes  vs.  Turner  Falls  Co 265 

Holnbeck  vs.  Wilson 110 

Holsoman     vs.     Boiling     Springs 

Bleaching  Co 408 

Holt  vs.   Wilson 344 

Honzik  vs.  Delaglise 29 

Hope  vs.   Brewer 336 

Hopper  vs.   Barnes 307 

Hopkins  Academy  vs.  Dickinson.  467 

Hornmel  vs.   Devinney 172 

Hovey  vs.   Nellis 315 

Howard  vs.    Throckmorton 358 

Howland  vs.  Coffin 185 

Hubbard   vs.    Bell 410 

Hubbard  vs.   Shaw 132 

Huebschman  vs.   McHenry 30 

Huffard  vs.  Gottberg 277 

Hughes  vs.  Anderson 411 


TABLES   OF   CASES   CITED. 


585 


Hughes  vs.   Allen 

Hughes   vs.   Windpfennig 

Hulbert    vs.    Clark 

Huff  vs.  Winona 

Hulett  vs.   Inlow 

Hunt  vs.   Comstock 

Hunt  vs.   Kingston 

Hunt  vs.   Kingston 

Hunt    vs.    Danforth 

Huntington  vs.  Parkhurst 

Huntington    vs.    Knox 

Huntington  vs.  Parkhurst 

Hunkins   vs.    Hunkins 

Hurd  vs.   Cushing 

Hurst    vs.    Rodney 

Hussman  vs.   Durham 

Huston  vs.   Bybee 

Huston  vs.  Bybee 

Huston  ys.   Bybee 

Hutchins  vs.  Klmball 

Huxley  vs.    Rice 

Icard  vs.   Davis 

Illinois      Central      R.      Co.      vs. 

Hough  ton    

Illinois  C.  R.  Co.  vs.  Chicago.... 

Ingalls   vs.   Hobbs 

Ingram  vs.   Little 

International  Trust  Co.  vs.  Schu- 

man   

Investors'    Mtg.    Co.    vs.    Loyd... 

Irwin    vs.    Phillips 

Izard   vs.    Badine 

Jackson  vs.   Moncrief 

Jackson  vs.   Delacroix 

Jackson  vs.  Kisselbrack 

Jackson  vs.   Titus 

Jackson    vs.    Rounesville 

Jackson  vs.  Housell 

Jackson   vs.    Brown 

Jacobs'   Appeal 

Jacobs  vs.    Miller 

Jeffers  vs.   Jeffers 

Jeffery  vs.   Hursh 

Jennings   vs.    McComb 

Jennison  vs.   Hapgood 

Jewett  vs.  Tucker 

Jiggitts   vs.    Jiggitts 

Jenkins  vs.  Eldredge 

Johnson  vs.  Plume 

Johnson  vs.  Ch.,  P.  &  O.  R.  Co.. 

Johnson  vs.   Zink 

Jones  vs.   Wagner 

Jones   vs.    Van    Boehove 

Jones  vs.  Smith 

Jones  vs.  Morris 


353 
227 
295 
415 
344 
178 
430 
431 
186 
233 
170 
236 
81 
51 
185 
479 
408 
408 
409 
61 
371 
171 

455 
477 
209 
189 

218 
124 
409 
358 
178 
178 
178 
189 

23 

50 
325 
499 
345 
407 
254 
168 

78 
293 

93 
177 

72 
410 
284 
402 
395 
278 
164 


Jordan  vs.   Clark 94 

Jourdan  vs.  Haran 84 

Joyce  vs.  Conlln 397 

Joyce  vs.    J.   I.    Case  Threshing 

Machine   Co 119 

Kabley  vs.  Worcester  Gas  Co....  177 

Kaeding  vs.  Joachlmstal 123 

Kaiser  vs.  New  Orleans 154 

Kansas  City  Land  Co.  vs.  Hill...  314 
Kansas  Central  R.  R.  Co.  vs.  Al- 
len      477 

Karchner   vs.    Hay 239 

Keating  vs.    Springer 203 

Keating  vs.   Springer 213 

Keating  vs.    Springer 213 

Keating  vs.    Springer 398 

Keats   vs.    Hugo 398 

Keiper   vs.    Klein 398 

Keller  vs.   Ashford v 275 

Kellett   vs.    Sheppard 305 

Kelley   vs.    Ohio   Oil    Co 10 

Kelley  vs.    Ohio   Oil   Co 25 

Kelley  Case 415 

Contra.   Kelly  vs.   Mills 292 

Kelly  vs.    Kelly 284 

Kennard  vs.   Kennard 317 

Kennedy   vs.    Burnap 400 

Kerr  vs.    Lunsf ord 501 

Kern   vs.    Myll 209 

Kew   vs.    Trainor 219 

Kier  vs.    Peterson 9 

Kiersted    vs.     Orange,     etc.,     R. 

R.    Co W4 

Killimore  vs.    Hewlett 20 

Kimball   vs.    Cross 177 

Kinnaird  vs.   Standard  Oil   Co...  410 

King  vs.  Welborn 124 

King    vs.    Reynolds '. ...  218 

King  vs.  Merritt 97 

King   vs.    Merritt 88 

King  vs.  Welborn 112 

King  vs.  Brigham 454 

King    vs.    Bushnell 72 

King  vs.   Southern  P.   Co 183 

Kingsley  vs.  Gouldsborough  Land 

Imp.    Co 390 

Kingsley  vs.  Gouldsborough  Land 

Imp.    Co 412 

Kingsley  vs.  McFarland 34 

Kiplinger  vs.  Green 238 

Kitchell   vs.    Burgwen 109 

Kitterlin  vs.  Milwaukee  Mechan- 
ics' Mut.   Ins.   Co 124 

Kittle  vs.  Van  Dyke 72 

Klespies  vs.   McKenzie 235 


586 


TABLES   OF    CASES   CITED. 


Kline   vs.    McLain 210 

Knapp  vs.    Jones 136 

Knapp  vs.   Windsor 344 

Knapp    vs.    Connecticut    Mutual 

Life  Ins.   Co 275 

Kneeland  vs.   Schmidt 226 

Knight  vs.  Mahoney 245 

Knight  vs.   Morrison 469 

Knight  vs.   Knight 260 

Knight  vs.  Crockford 169 

Knighton  vs.   Curry 282 

Knoedler  vs.  Glaenzer 461 

Knox's   Appeal 504 

Kohl  vs.  U.  S 476 

Konvalinka  vs.    Schlegel 98 

Kopp  vs.   Herman 455 

Kraut  vs.  Crawford 465 

Kruger  vs.   Le  Blanc 414 

Kumpe  vs.   Coons 315 

Laboree  vs.  Laboree 70 

Ladd  vs.  Anderson 290 

Ladue  vs.   D.  &  M.  R.  R 271 

Lakin  vs.   Lakin 92 

Lamb  vs.  Pierce 291 

Lambert  vs.  Weber 286 

Lampman  vs.  Milks 391 

Langhran  vs.   Smith 232 

Langhran  vs.  Smith 236 

Lampman  vs.   Van  Alstyne 455 

Lampman  vs.  Van  Alstyne 456 

Larkin   vs.    Avery 173 

Larmour  vs.   Rich 314 

Larrowe  vs.   Beam 80 

La  Sala  vs.   Holbrook 402 

Lash  vs.   Lash 350 

Lattimer  vs.   Lqvett 479 

Lathrop   vs.    Froster 90 

Law  vs.   Butler 124 

Law  vs.   Butler 260 

Lawrence  Estate 337 

Lawrence  vs.  Fox 275 

Larson  vs.  Railroad  Co 402 

Lawton    vs.    Rivers 412 

Lee  vs.  Timken 102 

Lee  vs.  Fletcher 268 

Lee  vs.  Fletcher 483 

Lee  vs.    Mosley 122 

Lehndorf  vs.    Cope 320 

Lehndorf  vs.   Cape 54 

Leiferman  vs.  Osten 203 

Lemon  vs.  Graham 50 

Leonard  vs.  Armstrong 210 

Leonard  vs.  Claugh 28 

Leonard  vs.  Braswell 440 

Leonard  vs.  Barr 316 

Leonard  vs.   Meaford...  21 


L'Etourneau  vs.  Henquenet 315 

L'Etourneau  vs.  Henquenet 327 

Lewis'  Appeal 350 

Life  Ins.   Co.   vs.   Cronk 34 

Lillibridge  vs.   Lackawana  Coal 

Company   5 

Lindley  vs.   Crombie 471 

List  vs.    Hornbrook 405 

List  vs.   Hornbrook 406 

Little  vs.   Martin 175 

Livingston  vs.   Hudson 479 

Livingston  vs.  Mayor 415 

Lindsay  vs.    Cooper 461 

Locke  vs.   Alexander 164 

Logan  vs.  Stogdale 389 

Lord  vs.  Morris 295 

Lorman  vs.   Benson 13 

Low  vs.   Pew 273 

Low  vs.    Streeter 399 

Lowber  vs.    Cojinit 458 

Low  vs.   Turpie 510 

Lozo  vs.  Sutherland 119 

Lutz    vs.    Sinthicum 164 

Luntz  vs.  Greve 67 

Lyon  vs.  Morgan 460 

Macdonough  vs.   Star  bird 35 

Madson  vs.  Madson 91 

Mahan  vs.   Brown 399 

Mahoney  vs.  Mahoney 359 

Main  vs.   Feathers 185 

Maine  vs.    Cumston 404 

Mallard  vs.  Bank 122 

Malloney  vs.   Horan 90 

Mandel  vs.  McClane 78 

Mandel  vs.  McClave 84 

Mandel baum  vs.   McDonell 48 

Mandelbaum  vs.   McDonell 336 

Manderbach  vs.  Bethany  Orphan 

Home 387 

Mannerbeck's    Estate 330 

Margarum    vs.    Christie    Orange 

Company   257 

Markoe  vs.  Wakeman 354 

Marshall  vs.   Ferguson 19 

Marshall  vs.  Mellon 133 

Marshall  vs.   Rugg 221 

Marshall  vs.   Thompson 256 

Marsh  vs.  Colby 417 

Martin   vs.    Martin 260 

Martin  vs.   O'Conner 182 

Martin  vs.    Tyler 478 

Martin  vs.   Martin 89 

Martin  vs.   Martin 91 

Marvin   vs.    Mining   Co 402 

Massey   vs.    Westcott 292 

Mason    vs.    Ammon 330 


TABLES   OF   CASES   CITED. 


587 


Matthews   vs.   Dixey 404 

Matthews  vs.   Dixey 406 

Mathewson  vs.  Hoffman 409 

Mattison  vs.   Marks 283 

Maxwell    vs.    Wilmington    Dental 

Company  273 

Maynard  vs.   Vinton 506 

Mayof  vs.  Newhoff 402 

Mayor  vs.   Mabie 218 

Mayor  of  Congleton  vs.  Pattison  185 

Magram  vs.  Little 189 

Mekes  vs.  Lake 172 

Meacham  vs.  Bunting 65 

Meacham  vs.   Bunting 452 

Mee  vs.  Benedict 419 

Meigs  vs.  Dibble 118 

Meister  vs.  Moore 61 

Melvin  vs.   Whiting 393 

Mercantile    Trust    Co.    vs.    Mis- 
souri,  K.    &   T.   R.    Co 294 

Mercantile  Bank  vs.  Ballard 313 

Mercantile  Bank  of  N.  Y.  vs.  Bal- 
lard      317 

Merrifield  vs.   Worcester 11 

Merrifleld  vs.   Worcester 407 

Merrifield  vs.  City  of  Worcester.  407 

Merritt  vs.    Brinkerhoff 407 

Merritt  vs.  Bartholick 277 

Mertz  vs.   Berry 121 

Mertz  vs.    Berry 121 

Mich.  State  Bank  vs.  Hastings...  238 

Middleditch  vs.   Williams 506 

Middlebrook  vs.  Corwin 22 

Middlemore  vs.  Goodale 185 

Mifflin's   Appeal 337 

Miller  vs.   McCardell 222 

Miller  vs.   Waddingham 34 

Miller  vs.  Farmers 93 

Miller  vs.   Miller 34? 

Miller  vs.   Davis 447 

Miller  vs.  Zufall 10 

Miller  vs.  Zufall 19 

Miller  vs.  Zufall 21 

Mills  vs.  Davison.'. ' 337 

Milton  vs.  Colby 34 

Minning  vs.  Batdorff 318 

Mitchell  vs.  The  Mayor,  etc 401 

Mitchell    vs.    Seipel 389 

Mitchell   vs.    Seipel 390 

Mitchell  vs.   Winslow 273 

Moellering  vs.   Evans 400 

Moffltt   vs.    Lytle 397 

Montgomery  vs.   Montgomery —  436 

Montgomery  vs.  Masonic  Hall...  401 

Mooney   vs.   Byrne 255 

Moore  vs.  Kent...              94 


Moore    vs.    Weber 

Moreley  vs.    Hoyt 

Morgan  vs.   Meuth 

Morgan  vs.  Meuth 

Morgan  vs.  Powell 

Morrill   vs.    Mackman. 


218 

26 

393 

394 

178 

383 

Morris  vs.   McCarty 344 

Morris  vs.   Davis 355 

Morrison  vs.   Watson 119 

Morrison    vs.    Bucksport 411 

Morrison  vs.  Sessions  Estate 428 

Mosely  vs.   Marshall 130 

Motley   vs.    Motley 85 

Motley  vs.  Motley 91 

Moulton  vs.   Cornish 296 

Mounce   vs.    Byars 258 

Moyer  vs.   Drummond 109 

Moyer  vs.   Drummond 119 

Mullaney  vs.  Duffy 462 

Mullen  vs.  Strieker 398 

Mullens  vs.  Looke 110 

Murray  vs.   Murray 84 

Murchie  vs.  Gates 410 

Musch  vs.    Burkhart 16 

Musch  vs.   Burkhart 16 

Myers   vs.   Vanderbelt 504 

Myers  vs.    Dunn 412 

McArthur  vs.   Scott 312 

McArthur  vs.  Scott 315 

McCarty  vs.  Woodstock  Iron  Co.  532 

McClanahan   vs.    Porter 88 

McClanahan  vs.  Porter 9!? 

McClintock's  Appeal 10 

McClintock's  Appeal 20 

McClure   vs.    Herring 164 

McClure   vs.    Fairfleld 81 

McConnell  vs.   Blood 33 

MteConnel  vs.  Konepel 356 

McCreery  vs.  Davis 95 

McCurdy  vs.  Canning 348 

McCurdy  vs.  Canning 349 

McDonald  vs.   Black 263 

McFarlane  vs.  Williams 168 

McGinnis  vs.   Kempsey 501 

McGonigle  vs.  Atchison 4 

McGaunt   vs.   Wilbur 178 

McGrath  vs.  Boston 178 

Mcllhinny  vs.   Mcllhinny 330 

Mclntyre   vs.    Costello 76 

McKee   vs.    Wilcox 63 

McKee   vs.    Wilcox 118 

McKelvey  vs.   McKel vey 102 

McKenzie  vs.   Lampley 17 

McLanahan  vs.  Griffin 93 

McLean  vs.  Rockey 137 

McLeod   vs.    Tarrant 344 


588 


TABLES   OF   CASES   CITED. 


McMahon  vs.  Gray 84 

McMahon  vs.  Gray 86 

McMahon  vs.  Gray 86 

McMillan  vs.  Bissel 254 

McNeer  vs.   McNeer 64 

McNeer  vs.    McNeer 65 

McNeil  vs.  Kendall 182 

McQuie  vs.  Peay 258 

McQuillen   vs.    Hatton 475 

McRoberts  vs.   McArthur 448 

McSloy  vs.  Ryan 213 

McTigue  vs.    McTigue 63 

Me  Williams  vs.   Ross 433 

McWhooter  &  Baldwin  vs.   Mc- 
Mahon    168 

Nash  vs.   Simpson 245 

Nashville  Trust  Co.  vs.  Smythe.  260 

Nashville  Trust  Co.  vs.  Smythe..  277 

Naylor  vs.   Minock 348 

Naylor  vs.   Minock 349 

Nebraska  vs.   Iowa 465 

Neely  vs.  Hoskins 241 

Negus   vs.    Becker 406 

Neilson  vs.   Bishop 319 

New  York  vs.  Law 387 

New  vs.  Wheaton 291 

Newton  vs.   McKay 189 

Newton  vs.   McKay 264 

Newton  vs.   McKay 489 

New  Vienna  Bank  vs.  Johnson..  258 

Nichols    vs.    Eaton 244 

Nicoll  vs.  N.  Y.  &  Erie  R.  R.  Co.  307 

Noke  vs.  Awder 185 

Nigro  vs.  Hatch 35 

North  vs.  Philbrook 49 

Norman   vs.    Wells 186 

Nowlin  vs.  Whipple 419 

Noyes  vs.  Southworth 507 

Noyes   vs.    Hemphill 396 

Nunnelly  vs.  Southern  Iron  Co..  384 

O'Brien  vs.  Kasterer 32 

Ocean    Grove    Ass'n   vs.    Asbury 

Park    10 

Ocean  Grove  Camp  Meeting  As- 
sociation vs.  Asbury  Park 410 

Offutt  vs.  Scott 353 

Olcott  vs.  Thompson 397 

Olcott  vs.   Pond  du  Lac  Co 476 

Old  Colony  R.   Co.  vs.  Framing- 
ham  Water  Co 470 

Oliver  vs.  Pullman 455 

Oliver  vs.    Snowden 112 

Olmstead  vs.  Niels 21 

Olney  vs.   Hull 313 

Orr   vs.    Shraft 110 

Orr  vs.  Shraft 113 


Osgood  vs.  Osgood 257 

Osgood   vs.    Abbott 245 

Outland  vs.  Bowen 323 

Overturf  vs.    Dungan 3 

Owen  vs.  Slatter 91 

Owen  vs.   Field 385 

Owens  vs.   Lewis 21 

Oyster  vs.  Oyster 330 

Paine  vs.  Chandler 388 

Paine  vs.  Chandler 389 

Paine  vs.  Chandler 389 

Paldi  vs.  Paldi 442 

Palmer  vs.  Edwards 181 

Palms  vs.   Palms 318 

Poull   vs.    Mockley 387 

Parkham  vs.  Thompson 18 

Parker   vs.    Beasley 287 

Parker   vs.    Beasley 287 

Parker  vs.  King 106 

Parker  vs.  Parker 242 

Parker  vs.   Foote 398 

Parker   vs.    Randolph 277 

Parker   vs.    Randolph 277 

Parks  vs.   Hazelrigg 152 

Patterson  vs.  Rabb 279 

Paul  vs.    Frierson 312 

Payne  vs.   Becker 85 

Pea  vs.  Pea gg 

Pearsall  vs.   Post 393 

Pearson  vs.   Carlton 359 

Peck  vs.  Rees 433 

Peck  vs.  Sherwood 130 

Peebles  vs.   Taylor 479 

Peet  vs.  Peet gl 

Pence  vs.   Arbuckle 190 

Pendergast  vs.  Heekin 113 

Penhollo w  vs.  D wight 18 

Pennington  vs.  Pennington 240 

Pennington  vs.  Pennington 320 

Penniman   vs.    Hartshorn 169 

Penny  vs.   Croul 337 

People  vs.   Gillis 177 

People's  Ice  Co*  vs.  Excelsior —      13 

People  vs.  Jackson 413 

People  vs.   Davidson 415 

Pepper  vs.  Pepper 352 

Perin  vs.  Megibben 79 

Perkins  vs.  Gumbel 277 

Peugh  vs.   Davis 288 

Phelan  vs.  Olney 277 

Phelps  vs.  Phelps 73 

Phelps  vs.  Nowlen 399 

Phillips  vs.  Stanch 124 

Phipps  vs.   Acton 114 

Pickering  vs.  Moore 23 

Pierce  vs.  Cleland 155 


TABLES   OF   CASES   CITED. 


589 


Pierce  vs.  Cleland 419 

Pierce  vs.  Selleck 413 

Pierce  vs.  Keator 384 

Pierson  vs.  Hammond 468 

Piggot  vs.  Mason 185 

Pike   vs.    Robertson 451 

Pingree  vs.  McDuffle 391 

Pittsburg,  W.  &  Ky.  Ry.  Co.  vs. 

Iron   Works    475 

Pluck  vs.  Digg-es 181 

Plimpton  vs.  Farmers'  Ins.  Co..  269 

Plummer  vs.  Hillside  Iron  Co....  9 

Plummer  vs.  Russell 162 

Plympton  vs.  Boston  Dispensary  130 

Poignand  vs.  Smith 264 

Pollock  vs.  Maison. 295 

Pond   vs.   Kimball 119 

Pool  vs.  Lewis 403 

Poole  vs.  Bently 178 

Porter  vs.  Perkins 357 

Porter  vs.    Wheeler 462 

Porter  vs.  Woodhouse 483 

Porter  vs.  Tull 210 

Post  vs.  Kearney 182 

Potts  vs.  Plaister 287 

Pound  vs.  Hollis 154 

Powers  vs.  Mastin 273 

Powers   vs.    Harlow 413 

Pratt  vs.   Tefft 99 

Pray  vs.  Stebbins 347 

Preble  vs.  Maine  C.  R.  Co 454 

Preble  vs.  Reed 390 

Prentice  vs.    Geiger 408 

Preston  vs.  Ryan 18 

Preston  vs.  Brant 314 

Prey  vs.    Stanley 244 

Price  vs.  Price 68 

Price  vs.  Gover 253 

Price  vs.  Hobbs 92 

Priest  vs.  Chouteau 354 

Proctor  vs.  Bigelow 97 

Proprietor,   etc.,   vs.    Permit 50. 

Prutsman  vs.   Baker 483 

Pulling  vs.  Pulling 82 

Estate   of   Pulling 72 

Purner  vs.   Piercy 18 

Pynchon  vs.  Stearns 134 

Quigley  vs.  DeHaas 164 

Railroad  Co.  vs.  Groh 455 

Railroad  Co.  vs.  Groh 456 

R.  R.   Co.  vs.   Schmoele 218 

Ramsden  vs.  Dyson 461 

Rasholt  vs.    Mehns 122 

Raynor  vs.   Lee 85 

"Head  vs.  Leads 382 

Rector  vs.  Waugh 50 


Reed  vs.  Marble 279 

Reid  vs.  N.  W.  R.  Co 468 

Reise  vs.  Enos 386 

Reise  vs.  Enos 387 

Reno  Smelting  Co.  vs.  Stevenson  409 

Reske  vs.  Reske 114 

Reynolds  vs.  Reynolds 92 

Rhea  vs.  Bagley 441 

Rhodes  vs.  McCormick 113 

Rice  vs.  Rudd 112 

Richard  vs.  Knight 17 

Richards  vs.  Carrie 479 

Rickenbacker  vs.  Zimmerman —  441 

Rickett  vs.  Dowell 4 

Ridgway  vs.  Masting 93 

Ridgeway  Stone  Co.  vs.  Way..  27 

Ridgeway  Stone  Co.  vs.  Way..  30 

Riedler  vs.  Fish 162 

Riggs  vs.  Palmer 439 

Riggs  vs.  Sterling 106 

Riggs  vs.  Bell 175 

Riley  vs.  Starr 254 

Riley  vs.  Boston  Water  Power 

Company  24 

Ritchie  vs.  Kansas,  N.  &  D.  Ry. 

Company  240 

Ritger  vs.  Parker 386 

Roan  vs.  Holmes 89 

Roan  vs.  Holmes 93 

Roane  vs.  Baker 290 

Roane  vs.  Hollingshead 507 

Robertson  vs.  Stevens 62 

Robertson  vs.  Baker 354 

Robbins  vs.  Barron... 479 

Robinson  vs.  Baker 106 

Robinson  vs.  Vancleave 42 

Robinson  vs.  Vancleave 288 

Robinson  vs.  Clapp 15 

Robinson  vs.  Clapp 16 

Robinson  vs.  Clapp 398 

Robinson  vs.  Leach 120 

Robinson  Bank  vs.  Miller 352 

Robinson's  Appeal 350 

Robbins  vs.  Mastellar 269 

Roche  vs.  Waters 130 

Re  Rochester 293 

Roe  vs.  Havley 185 

Rogers  vs.  Brokaw 28 

Rogers  vs.  Barnes 298 

Rogers  vs.  Sinisheimer 405 

Root  vs.  Wadhams> 413 

Root  vs.  Bradley 286 

Ross  vs.  Thompson 414 

Ross  vs.  Henderson 353 

Rose  vs.  Hawley 391 

Rose  vs.  Watson...  .  376 


590 


TABLES   OF   CASES   CITED. 


Rough  vs.  Warner 17 

Rouse  Est.  vs.  Directors  of  Poor.  64 

Routree  vs.  Renard 109 

Rowley  vs.  Stray 430 

Royal  vs.   Aultman-Taylor   Co...  243 

Ruch  vs.   Rock  Island 243 

Rumsey  vs.  N.  Y.  &  N.  E.  R.  Co.  408 

Russell    vs.    'Fabyan 229 

Russell  vs.  Fabyan 230 

Russell  vs.  AfcCall 353 

Russell's  Ex.  vs.   Moose's  Heirs.  172 

Ryan   vs.    Andrews 435 

Ryan  vs.   Martin 268 

Sager  vs.   Galloway 319 

Sager   vs.    Galloway 320 

Salem  Natl.  Bank  vs.  White 85 

Sammon   vs.   Wood 125 

Sampson  vt.  Easterby 185 

Sanders  vs.   McMillan 88 

Sanders  vs.  McMillan 91 

Sanderlln  vs.   Baxter 391 

Sargent  vs.   Webster 164 

Sawyer  vs.  Twlss 23 

Saxton  vs.   Webber 316 

Saxton  vs.   Hitchcock 256 

Sayers  vs.  Hosklnson 132 

Scales  vs.    Scales 94 

Scantlln  vs.   Allison 359 

Scharman  vs.   Scharman 461 

Schaefer  vs.   Marthaler 10 

Schier  vs.  Eldrldge 130 

Schlle  vs.  Brokhahus 404 

Schilling  vs.    Rominger 409 

Schmalzried   vs.    White 208 

Schmidt   vs.    Zahrandt 290 

Schneider  vs.   Norris 169 

Schofleld  vs.  Walker 50« 

School  Dist.  No.  11  vs.  Batsche..  228 

Schuch  vs.    Hilsendegen 234 

Contra.   Schuelly  vs.   Schuelly 83 

Schulenberg  vs.  Harriman 243 

Schultz  vs.  Byers 402 

Schuyler  vs.   Hanna 317 

Scofield    vs.    Olcott 317 

Scofleld    v».    Olcott 317 

Scott    vs.    Hancock 78 

Scott  vs.   West 319 

Scott  vs.  Young  Men's  Assn 378 

Scott  vs.   McAlpine 164 

Scovill  vs.   McMahon 242 

In  re  Seager  Estate 80 

Searle   vs.    Lead 278 

Seibert  vs.   Todd 96 

Sexton   vs.    Breese 17 

Shaugnessey  vs.   Leary 396 

Shaw  vs.   Kirby 114 


Shaw  vs.  Shaw 35 

Shaw  vs.   Hearsey 344 

Shaw  vs.  Farnsworth 177 

Shaw   vs.    Farnsworth 178 

Shearer  vs.    Ranger 85 

Shell   vs.    Duncan 119 

Shellenberger  vs.  Ransom 439 

.Shelley's   Case 327 

Shelton   vs.    Orr 119 

Shelton  vs.   Codman 185 

Sherod  vs.  Ewell 83 

Shields   vs.    Lozier 285 

Shoemaker  vs.   Shoemaker 390 

Shortall  vs.  Washington  Ice  Co..  13 

Stelz    vs.    Shreck 350 

Simms  vs.   Hervey 189 

Simpson    vs.    Pearson 347 

Simpson  vs.  Ferguson 267 

Sinclair  vs.  Comstock 416 

Sioux  City  vs.   Singer 290 

Sisson  vs.  Donnelly 48 

Skinner  vs.   Wilder 15 

Sloan  vs.   Williams 94 

Slocum  vs.   Seymour 10 

Slocum   vs.   Seymour 19 

Blingerland    vs.    Sherer 295 

Small    vs.    Small 98 

Small    vs.    Small 99 

Swearingen  vs.    Lahner 295 

Smeberg   vs.    Cunningham 454 

Smiley  vs.   Wright 91 

Smith  vs.  Det.  B.  &  L.  Assn 220 

Smith  vs.    Arthur 459 

Smith  vs.  Barrie 241 

Smith  vs.  Barrie 243 

Smith   Lead   Cas 417 

Smith   Lead   Cas 442 

Smith's  Lead  Cas 185 

Smith    vs.    West 312 

Smith    vs.    West 317 

Smith  vs.  Austin 288 

Smith  vs.  Wooding 175 

Smith   vs.    Lock 416 

Smith  vs.  Jewett 128 

Smith  vs.   Hamilton 463 

Smith  vs.    Hitchcock 453 

Smith  vs.   Roberts 282 

Smith   vs.    Price 

Smith  vs.    Mohr 277 

Smith  vs.   Youmans 409 

Smith  vs.    Smith 68 

Snell  vs.    Levitt 394 

Soderberg  vs.  King 298 

Sohier  vs.   Trinity   Church 23 

Contra.  Southwick  vs.  Ellison....  22 

Sparger  vs.   Cumpton 106 


TABLES   OF   CASES   CITED. 


591 


Sparger  vs.   Cumpton 106 

Sparrow  vs.    Hovey 450 

Sparrow  vs.   Pond 14 

Spencer   vs.    Geissman 118 

Spencer's  Case 185 

Spielman  vs.  Kliest 171 

Squire  vs.   Ford 212 

Stackpole  vs.   Healy 413 

St.  Paul  Furniture  Co.  vs.  Sauer.      31 
St.  Joseph  &  St.  L.  R.  Co.  vs.  St. 

Louis,    I.,    M.   &  L.    R.    Co 182 

St.  Joseph  &  St.  L.  R.  Co.  vs.  St. 

Louis,  L,  M.  &  L.  R.  Co 222 

Stael   vs.   Wilbur 17 

Stamm  vs.   Bostwick 425 

Stamm  vs.   Bostwick 438 

Strange  vs.  Durham 456 

Stantons  vs.  Thompson 280 

Starnes    vs.    Hill 320 

Starnes   vs.    Hill 329 

Slegel  vs.  Lauer 307 

Sternberg   vs.    Larkins 353 

Sterling  vs.   Jackson 418 

Stern    vs.    Lee 107 

Stern    vs.    Lee 112 

Stern    vs.    Lee 118 

Stern    vs.    Lee 118 

Stevens  vs.   Rose 131 

Stevenson  vs.  Wallace 400 

Stewart   vs.    Wheeling     &    L.    E. 

R.    R.   Co 283 

Stewart  vs.  Wheeling 300 

Stewart   vs.    Doughty 18 

Stewart  vs.    Ross 64 

Stewart  vs.   Mackey 124 

Stillman  vs.    Flenniken 28 

Stinfleld  vs.   Little 164 

Stull  vs.  Rich  Patch  Iron  Co 447 

Stone  vs.   Darnell 121 

Stone  vs.   Darnell 120 

Stone   vs.    Welling 293 

Storrs    vs.    Storrs 127 

Stowell   vs.    Lincoln 409 

Strong  vs.  Doyle 23 

Stroup   vs.    Stroup 73 

Contra.     Stuart    First    Natl.    vs. 

Hollingsworth    114 

Stubbings  vs.   Evanston 200 

Stubbings  vs.   Evanston 211 

Stults  vs.   Sales 110 

Stuyvesant   vs.    Woodruff 386 

Stuyvesant  vs.  Woodruff 387 

Sulzbacher   vs.    Dickie 154 

Summit  vs.  Yount 247 

Sumner  vs.    Darnell 241 

Sumner  vs.   Seaton 462 


Sun   Fire  Office  vs.    Clark 253 

Sutherland  vs.   Sutherland 76 

Swaine  vs.   Ferine 102 

Swan  vs.   Munch 444 

Swayne  vs.   Chase 117 

Sweany  vs.   Mallory 91 

Sweet  vs.   Cutts 10 

Swetland  vs.  Swetland 254 

S wetland  vs.  Swetland 254 

Swift  vs.  Calnan 404 

Taft  vs.   Brewster 164 

Talama  vs.    Spitzmiller 232 

Talbot  vs.  Hudson 475 

Talcott  vs.  Peterson 267 

Tampa  Water  Wks.  Co.  vs.  Cline  410 

Tarrant  vs.   Swain 119 

Tatem  vs.   Chaplen 185 

Taylor   vs.    Burnsides 448 

Taylor   vs.    Burnsides 449 

Taylor  vs.   Millard 356 

Taylor  vs.   Millard 357 

Taylor  vs.   Millard 387 

Taylor  vs.    Fickas 410 

Taylor  vs.   Fickas 411 

Taylor  vs.   Horde 442 

Taylor  vs.  Hart 211 

Taylor  vs.  Boulware ., 398 

Taylor  vs.    Mason 248 

Taylor  vs.   Taylor 101 

Taylor  Land  and  Tenn 143 

Templeton  vs.  Twitty 63 

Templeton  vs.  Twitty 64 

Terrel   vs.   Frazier 21 

Texas  Land  &  Co.  vs.  Carroll —  170 

Thomas  vs.  Evans 130 

Thompson  vs.  Christie 219 

Thornburg   vs.    Wiggins 339 

Thornburg   vs.    Wiggins 345 

Thornburg  vs.  Wiggins 356 

Thornburn    vs.    Doscher 99 

Thornton   vs.    Trammell 241 

Thurber  vs.    Townsend 65 

Thurston  vs.  Maddox 119 

Tibbetts  vs.  Home 30 

Tefft  vs.  Munson 266 

Tilden  vs.  Streeter 254 

Tillman  vs.  Fuller 177 

Titsworth  vs.  Stout 356 

Timm  vs.  Bear 407 

Tindell  vs.   Tindell 345 

Tinkham  vs    Jackson 392 

Tloga  Co.  vs.  South  Creek  Twp..  436 

Tippets  vs.  Walker 164 

Todd  vs.    Oviatt 62 

Tong  vs.   Marvin 66 

Toomey  vs.    McLean 70 


592 


TABLES   OP  CASES  CITED. 


Toomey  vs.   McLean 96 

Tapia  vs.  Demartini 271 

Towne  vs.  Butterfleld 233 

Townsend  vs.  Hubbard 164 

Tracy  vs.  Atherton 393 

Traylor  vs.   Cabanne 168 

Trent  vs.    Hunt 290 

Tripp  vs.   Hascig 17 

Troman  vs.  Mahlman 114 

Trombley  vs.  Humphrey 476 

Trombley  vs.  Humphrey 476 

Trombley  vs.   Auditor-General...  473 

Trotter  vs.   Dobbs 120 

Trowbridge  vs.   Cross 351 

Truesdell  vs.  Lehman 48 

Truil  vs.   Bigelow 291 

Trumbull  vs.   Trumbull 329 

Trustee  of  Poor  vs.  Pratt 96 

Tucker  vs.  Adams 233 

Tucker  vs.   Bass 164 

Tucker  vs.  Tucker 85 

Turner  vs.  Thompson 398 

Turner  vs.  Wentworth 38 

Turner  Coal  Co.  vs.  Glover 262 

Turnpike  Road  vs.  Railway  Co...  478 

Tuttle  vs.  Wilson 97 

Tuttle  vs.   Burgett 273 

Tyler   vs.    Cartwright 358 

Tyler  vs.  Hammond 394 

Ulbricht  vs.  Eufala  Water  Co...  407 

Underhill  vs.  Saratoga  R.  R.  Co..  240 

Unger  vs.  Letter 77 

Unger  vs.  Letter 78 

Union  Mut.  Life  Ins.  Co.  vs.  Han- 
ford    276 

Union  Mortgage  Co.  vs.  Peters..  283 

Union  Brewery  Co.  vs.  Meier 85 

United  States  vs.  Peachy 402 

U.  S.  vs.  Jones 476 

Vail  vs.  L.  I.  R.  R.  Co 306 

Van  Baalen  vs.   Cotneyi 291 

Van  Cleof  vs.  Boems 95 

Vannest  vs.   Flemming 411 

Vann  vs.  Marbury 278 

Vann  vs.  Marbury 278 

Veghte  vs.  Raritan  Co 395 

Venerable  vs.   Wabash 96 

Verner  vs.    Betz 268 

Vernon  vs.    Smith 185 

Verplanck   vs.    Wright 186 

Vincent  vs.   Spooner 103 

Vinton   vs.   Beamer 349 

Vinz  vs.   Beatty 175 

Viser  vs.  Rice 189 

Voorhees   vs.    McGinnis 38 

Vyoyan  vs.  Arthur 185 


Wade  vs.  Jones 109 

Wade  vs.  Donau  Brewing  Co 30 

Wager  vs.  Stone 263 

Waite  vs.   O'Neil 210 

Wallace  vs.  McCollough 169 

Wallace  vs.  Kimball 436 

Wallace  vs.  Harris 125 

Waldron  vs.   Toledo  &  Ann  Ar- 
bor R.  R.  Co 241 

Waif  vs.   Dozer 175 

Walker  vs.   Schmidel 36 

Walker  vs.    Cronin 399 

Walsh  vs.  Usher 164 

Walters  vs.   People U6 

Ward  vs.   Ward 358 

Ward  vs.  Ward 359 

Ward  vs.  Fagin 210 

Ware  vs.  Owens ; 353 

Warren  vs.  Warren..... 285 

Warren  vs.  Chambers 466 

Warren  vs.  Chambers 466 

Warner  vs.   Bennett 239 

Wassell   vs.    Tumah 104 

Washington  Ice  Co.  vs.  Shortall.      13 

Watkins  vs.    Peck 393 

Wattles  vs.   S.   Omaha  Ice  Co...    221 

Watson   vs.    Wyman 278 

Watson  vs.  Conrad 313 

Watson  vs.  Lion  Brewing  Co....    436 

Weaver  vs.   Rush 85 

Webster  vs.    Lowell 396 

Webster  vs.  Wiggin 337 

Webster   vs.   Peet 132 

Weed  vs.   Lindsay 233 

Weidersum   vs.    Xaumann 4^ 

Welch    vs.    Taylor 395 

Weld  vs.  Traip 177 

Wellington  vs.   Janvein 244 

Welsh  vs.   Foster 366 

Welton  vs.  Dickon 475 

"Welton  vs.   Dickon 477 

West  Point  Iron  Co.  vs.  Reymert    408 
Westmoreland   Natural   Gas   Co. 

vs.   Dewitt   10 

Westmoreland    &   Cambria   Nat- 
ural Gas  Co.  vs.  DeWitt 220 

Westmoreland   Natural    Gas   Co. 

vs.  DeWitt  10 

Wharton  vs.  Stevens 411 

Wheart  vs.   Cruser 54 

Wheatly  vs.  Barker 54 

Wheeler   vs.    Knitland 95 

Wheeler   vs.   Wilder 397 

Wheeler  vs.   Kirtland 82 

Whitbeck  vs.   Cook 414 

Whitcomb  vs.  Rodman 508 


TAllhE.S   OF   CASKS   CITED. 


593 


White  vs.  Howard 4 

White    vs.    Skinner I'M 

White  vs.    Downs 25& 

White    vs.    Fuller 141 

White  vs.  Atlas  Lumber  Co 268 

White  vs.  Atlas  Lumber  Co 2C8 

White  vs.  Atlas  Lumber  Co 268 

White  vs.  Atlas  Lumber  Co 269 

Whiteside   vs.    Cooper 314 

Whitiuy    vs.    Salter 127 

•Whitney  vs.   Salter 1:JO 

Whitney  vs.  Wheeler  Cotton  M'ls  409 

Whiuier  vs.   Cocheco  Mfg;  Co....  396 

Whitting  vs.   Ohlert .' 173 

Whitting     vs.     Pittsburg     Opera 

House  Co 173 

\\Vihl   vs.   Robertson 489 

Witfjdn  vs.   Perkins 316 

Wilcox  vs.    Wheeler 49 

Wilkins    vs.    French 270 

Wilkins   vs.   Jewett 405 

Wilkinson   vs.    Merrill 110 

Wilkinson  vs.   Sherman 327 

Williams  vs.   Williams 97 

Williams   vs.    Clark 412 

Williams  vs.  Williams 93 

Williams    vs.    Williams 96 

Williams  vs.   Morris 356 

Williams  vs.   Kimball 440 

Williams  \a.   Silliman 271 

Williamson    vs.    Janes 133 

Willis    vs.    Bellamy.. ^ 164 

Wilson    vs.    Hughes 10 


Wilson  vs.  Hughes 480 

Wilson  vs.   New  Bedford 11 

Wilson  vs.   Cox 98 

Wilson   vs.    Cockron 109 

Wilson  vs.   Campbell 278 

Wilson  vs.   Campbell 280 

Wilson  vs.  White 315 

Wilton  vs.  Mayberry 283 

Winans   vs.    Wilkie 280 

Winship    vs.    Pitte...; 134 

Winters  vs.    Deturk 93 

Winters   vs.    Deturk 96 

Winters    vs.    Deturk 97 

Witham  vs.  Perkins 63 

Witczniski  vs.  Everman, 271 

Wittenmeyer  vs.   Board  of  Ed...  39 

Wood  vs.   Wood 94 

Wood  vs.  Landl,  T.  S 181 

Wood  vs.  Clarke 178 

Wood   vs.    Robertson 316 

S.  P.  Wood  vs.  Crocker 178 

Woodbury  vs.  Short 466 

Woodman  vs.  Pitman 13 

Woodward-Holmes  Co.  vs.  Nudd.  79 

Woodward-Holmes  Co.  vs.  Nudd.  79 

Wright  vs.  Wright 90 

Wright  vs.  Wright 272 

Wright  vs.  Trevisant 178 

Wyckoff  vs.  Gardner 344 

Wynkoop   vs.   Cowing 288 

Yale  vs.   Leeley 21 

Young  vs.   Young 273 

Zoellner  vs.   Zoellner .  Ill 


A     000  678  603     2 


